PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND GETCHYA, LLC, A FLORIDA LIMITED LIABILITY COMPANY, AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES. (COLLECTIVELY, “GETCHYA,” “WE,” “OUR,” or “US”)
GETCHYA provides a technology platform (the “Platform”) including mobile applications and websites that creates online marketplace connections between you and other third parties, including individuals, restaurants and/or other businesses, and independent contractors (“Delivery Contractors”) who provide delivery and other courier services, in each case, subject to the terms and conditions of this Agreement. GETCHYA is not an e-commerce platform, delivery service, restaurant, food preparation business, consumer products business or provider of any services other than the Services expressly described in this Agreement. You acknowledge that GETCHYA does not provide shipping, transportation, courier or other delivery services; it is a technology company that maintains a digital platform intended to connect third party Delivery Contractors with potential customers.
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH GETCHYA THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND GETCHYA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST GETCHYA. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
- ACCEPTANCE OF THIS AGREEMENT
If you do not agree to the terms or conditions of this Agreement, you may not use the Platform or the Services. Unless otherwise agreed by GETCHYA in a separate written agreement with you or your authorized representative, the Platform is made available solely for personal, non-commercial use by United States citizens seeking Delivery Requests within the United States.
- CHANGES TO THIS AGREEMENT
The Platform and the Services may only be used by U.S. citizens or entities that are domiciled in the United States who have the right and authority to enter into this Agreement and are fully able and competent to satisfy the terms, conditions, and obligations herein. In order to use parts of the Platform and/or the Services, you will be required to create an account (“Account”).The Platform and Services is not available to users who have had their Account temporarily or permanently deactivated. Each person may only create one User account, and GETCHYA reserves the right to deactivate any additional or duplicate accounts.
By creating an Account, you represent and warrant that you are at least 18 years old. Notwithstanding the foregoing, if you are the parent or legal guardian of a 16 or 17-year-old minor you may create an Account for such minor to use the Platform and the Services subject to the following requirements and restrictions: (a) you determine that the Services are suitable for the minor, (b) you ensure that the minor’s use of the Platform and the Services is done in compliance and acknowledgement of all applicable safety instructions and warnings in this Agreement, (c) you ensure that the minor does not request or accept any Services in person unless accompanied by you or an authorized guardian, (d) you explain the terms of this Agreement to the minor, and (e) you expressly guarantee the minor’s acceptance of the terms of this Agreement. Notwithstanding the foregoing, no person is authorized to use the Platform or otherwise access the Services if you are under the age of 13.
By creating an Account for such minor, you hereby give permission and consent to the Agreement on the minor’s behalf, and you shall assume any and all responsibility and liability for the minor’s use of the Platform and the Services as provided by the terms of this Agreement. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor.
If you use the Services in this manner, we may create an Account for you based on the information you provide to us in connection with the transaction (e.g., your payment information, name, phone number, email address, and other transaction information). If you are using the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that entity, organization, or company.
In all cases, you must provide accurate, current, and complete information during the Account registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your Account, and you may not assign or otherwise transfer your Account to any other person or entity. Should you suspect that any unauthorized party may be using your password or Account, you will notify GETCHYA immediately. GETCHYA will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by GETCHYA or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or GETCHYA has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, GETCHYA has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by GETCHYA, or if you have been previously banned from use of the Services. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future account credits, promotional offers, and any other forms of unredeemed value in or associated with your Account without prior notice to you.
- PAYMENT AND OUR CREDIT POLICY
Certain features of the Platform, including, without limitation, the placing or receipt of Delivery Requests, may result in charges to you for the services you receive from Delivery Contractors or other third parties, including, but not limited to, commissions and/or other fees and expenses (“Charges”). After you have received services obtained through your use of the Services, GETCHYA will facilitate your payment of the applicable Charges on behalf of the Delivery Contractor, as such Delivery Contractor’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Delivery Contractor. Charges will be inclusive of applicable taxes where required by law.
All Charges are due immediately and payment will be facilitated by GETCHYA using the preferred payment method designated in your Account, after which GETCHYA will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that GETCHYA may, as the Delivery Contractor’s limited payment collection agent, use a secondary payment method in your Account, if available. GETCHYA has the right to collect any outstanding and owing amounts immediately if any payment method used does not go through or processed properly.
All payments are final and non-refundable, unless otherwise determined by GETCHYA. GETCHYA, in its sole discretion, may offer credits on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged. GETCHYA will charge, and you authorize GETCHYA to charge, the payment method you specify at the time of purchase. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Platform, any disruption to the Platform or the Services, or any other reason whatsoever. If you pay any amounts with a credit card, GETCHYA may seek pre-authorization of your credit card account through our payment processer prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase.
All charges are facilitated through a third-party payment processor (currently, Stripe, Inc.). We may replace our third-party payment processor without notice to you. Charges shall only be made through the Platform. With the exception of tips, cash payments are strictly prohibited. Your payment of charges to GETCHYA satisfies your payment obligation for your use of the Platform and Services. Lyft may group multiple charges into a single aggregate transaction on your payment method based on the nature of the charges and/or the date(s) they were incurred. If you don’t recognize a transaction, then check your receipts and payment history. You acknowledge and agree that the payment processor’s charges will be deducted from the charges payable by you through the Platform, including out of any tip you choose to leave via the Platform.
GETCHYA reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Services at any time, and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for items and services. GETCHYA may also, in its sole discretion, make promotional offers with different features and different rates available to any or all of our users. Unless made available to you, these promotional offers will have no bearing on your obligation to pay the amounts charged.
The provider of the Services is set forth herein. 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 or (916) 445-1254.
- OUR MATERIALS AND LICENSE TO YOU
With the exception of Your Content (defined below), the Platform and everything on it, including, without limitation, text, photos, videos, graphics, mobile applications and other software, (collectively, the “Materials”) is owned by or licensed to GETCHYA. The Platform and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Platform and except for the intellectual property of other companies that are displayed on the Platform, all intellectual property rights in and to the Materials are proprietary to GETCHYA. Accordingly, you are not authorized to download or use any content from the Platform, including, without limitation, the Materials except for your limited use of the Platform to the extent permitted under this Agreement and required to obtain the Services. Without limiting any rights and/or remedies that may be available to GETCHYA pursuant to this Agreement, at law or in equity, including the right to seek an injunction prohibiting such unauthorized downloading or use and/or recovering damages related to such unauthorized downloading or use, GETCHYA will not be responsible in any way for any damage to your computer system or loss of data that results from any unauthorized downloading or use. Please also be advised that GETCHYA enforces its intellectual property rights to the fullest extent of the law.
Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Platform and the Services for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to strict compliance with all of the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the Platform. Any other use of the Platform or the Services is strictly prohibited. Nothing contained on the Platform and/or the Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third-party proprietary content on the Platform without the express written permission of GETCHYA or the relevant third-party owner, as applicable. Any rights not expressly granted herein are reserved by GETCHYA and GETCHYA’s licensors.
- YOUR CONDUCT AND YOUR USER CONTENT
By accessing the Platform and/or the Services, you agree:
- to comply with the Agreement and all applicable laws, rules, and regulations in connection with your use of the Platform and Services, including, without limitation, laws regarding online conduct and Your Content (as defined below);
- not to use the Platform or Services for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
- not to access the Platform or the Services using a third party’s account/registration without the express consent of the Account holder and not to attempt to impersonate another user or person;
- not to avoid, bypass, remove, deactivate, impair, descramble, or attempt, through any means, to circumvent any technological measure implemented by GETCHYA to protect the Platform, or otherwise attempt to gain unauthorized access to any part of the Platform and/or any Service, other Account, computer system, and/or network connected to any GETCHYA server;
- not to use the Platform or Services in any manner that could damage, disable, overburden, and/or impair the Platform, any GETCHYA server, or the network(s) connected to any GETCHYA server, and/or interfere with any other party’s use and enjoyment of the Platform;
- not to advertise to, or solicit, any user, Delivery Contractor, or business to buy or sell any products or services, or use any information obtained from the Platform or the Services in order to contact, solicit, or advertise or sell to any user, Delivery Contractor, or business, in each case, unless specifically authorized in writing by GETCHYA;
- not to deep-link to or frame the Platform and/or access the Platform manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the Platform and/or any Materials and/or other content on the Platform, unless specifically authorized in writing by GETCHYA;
- not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the Platform;
- not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the Platform or Materials;
- ● not to create false or untruthful reviews, social media posts or blog entries or any reviews, posts, or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Platform and the Services;
- not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from any incentive offers provided by GETCHYA;
- not to harass, annoy, intimidate, or threaten any GETCHYA employees, Delivery Contractors, other contractors, agents, or any other party engaged in providing any portion of the Services;
- not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (including, without limitation, by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any of Your Content (as defined below) or from any portion of the Platform or the Services;
- not to rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Platform and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Platform and its Services; and
- not to disrupt, interfere with, or otherwise harm or violate the security of the Platform, or any Services, system resources, accounts, passwords, servers or networks connected to or accessible through the Platform or affiliated or linked sites (including, without limitation, those of GETCHYA).
By using the Platform and/or receiving the benefit of the Services, you further agree not assist or permit any person in engaging in any conduct that does not comply with the conduct listed above. Further, you agree that the consequences of commercial use or re-publication of Materials from the Platform or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that GETCHYA will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove actual damages or post a bond.
Your User Content
GETCHYA may provide you with interactive opportunities (i) on the Platform, including, without limitation, features such as user ratings and reviews, saved favorites, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (collectively, “Interactive Areas”). You are responsible for any information, text, reviews, posts, images, videos or other materials or content that you post on the Platform, transmit through the Platform or in connection with the Services, including, without limitation, your username and/or other Account profile information such as your ratings history, preferred Delivery Contractor and how long you have maintained a GETCHYA Account (“User Content”). You represent and warrant that you are the owner of and/or otherwise have the right to provide all of your User Content. You agree, represent and warrant that any User Content that you post on the Platform or transmit through the Platform is truthful, accurate, not misleading and offered in good faith, and that you have the right to transmit such User Content. You shall not include in any User Content, or upload, post or otherwise make available on or through the Platform any of User Content that is protected by copyright, trademark, or other proprietary right of any third party without the express written permission of the owner of such right(s). You shall be solely liable for any damages resulting from any infringement of copyright, trademark, proprietary rights, or any other harm resulting from your User Content.
Use of Your User Content
PLEASE DO NOT POST OR SEND US ANY IDEAS, SUGGESTIONS, OR OTHER OF YOUR CONTENT THAT YOU WISH TO KEEP PROPRIETARY OR FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION. By sending any ideas, concepts, know-how, proposals, techniques, suggestions or other User Content to us, you agree that: (i) we are free to use such User Content for any purpose, (ii) such User Content will be deemed not to be confidential or proprietary (iii) we may have something similar already under consideration or in development, and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances unless otherwise expressly agreed in writing by us.
You further understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. GETCHYA and its members, managers, parents, subsidiaries, affiliates, and each of their respective officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties harmless from and against any and all liability for the action of any and all third parties with respect to your User Content, or for any damages you allege to incur as a result of or relating to any third-party content.
Conduct within Interactive Areas
We do not endorse any User Content posted in Interactive Areas, cannot guarantee the accuracy or authenticity of such User Content, and are acting only as a passive conduit for such User Content. User Content may include suggestions for uses of the Platform or the Services that have not been evaluated or approved by us; we do not recommend such uses.
You acknowledge and agree that Interactive Areas are public spaces and that your participation in such Interactive Areas creates no expectation of privacy. Further, you acknowledge that any User Content you communicate in Interactive may be seen and used by others. You understand that our staff, outside contributors, or other users connected with us may participate in Interactive Areas or other aspects of the Platform and may employ anonymous usernames when doing so. Any user failing to comply with this Agreement may be expelled from and refused continued access to Interactive Areas in the future. However, we are not responsible for User Content that you or others choose to communicate in Interactive Areas, or for your actions or the actions of other users. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONAL INFORMATION OR OTHER USER CONTENT PUBLICLY AVAILABLE IN AN INTERACTIVE AREA OR OTHERWISE ON OR THROUGH THE PLATFORM, YOU DO SO AT YOUR OWN RISK.
You acknowledge and agree that we reserve the right (but have no obligation) to do one or all of the following, at our sole discretion: (a) evaluate User Content before allowing it to be posted on the Platform or any Interactive Area; (b) monitor User Content and Interactive Areas; (c) alter, remove, reject, or refuse to post or allow to be posted, without notice to you, any User Content, for any reason or for no reason whatsoever; provided, however, that we shall have no obligation or liability to you for failure to do so or for doing so in any particular manner; and/or (d) disclose any User Content, and the circumstances surrounding its transmission, to any third party in order to operate any portion of the Platform, to protect us, visitors to the Platform or others, to comply with legal obligations or governmental requests, to enforce this Agreement, or for any other reason or purpose we deem appropriate. If you see User Content on the Platform that you believe violates the terms of this Agreement, please contact us.
By posting on the Platform, transmitting through the Platform, sending, or otherwise submitting User Content to us, you further agree to follow the standards of conduct below, and any additional standards that may be stated on the Platform. We expect your cooperation in upholding our standards. You are responsible for all of your User Content. You agree that your User Content will not:
- be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another’s privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable;
- have a commercial, political, or religious purpose;
- be false, misleading, and/or not written in good faith;
- infringe any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
- be illegal and/or promote illegal activity;
- contain unauthorized advertising and/or solicits users to a business other than those on the Platform; and/or
- be intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Platform or other websites.
- 7. COMMUNICATIONS & TEXT MESSAGES
By voluntarily providing your cell phone number to GETCHYA, you agree that GETCHYA or Delivery Contractors may contact you by telephone, SMS, or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand and consent that such messages may be sent using an automatic telephone dialing system.
When placing orders through the Platform, you may receive two or more order status messages from GETCHYA about each order. Additionally, you may receive messages from a Delivery Contractor in connection with any order, including, without limitation, confirming delivery location or directions, or from GETCHYA confirming completion of an order and your feedback with respect to such order, including whether or not you would like to add a tip. In order to use the Services, you must consent to receiving such communications. If you do not wish to receive such communications, you must discontinue use of the Platform and the Services.
You may also receive communications from GETCHYA soliciting feedback and/or other information relating to an order, or marketing or promotional opportunities. You may unsubscribe from all such feedback messages by replying “STOP” to the number sending the feedback messages. To resubscribe, text “START” to the number sending the feedback messages using the phone number associated with your account. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from GETCHYA, or the Delivery Contractor regarding your order or its delivery unless you unsubscribe to the Platform and terminate your Account.
Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g., T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages. If you require assistance, please call our Customer Care team at 954-604-0939
- ADDITIONAL TERMS FOR MOBILE APPLICATIONS
We may make available software to access GETCHYA’s websites, technology platforms, and related online and mobile services via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. GETCHYA does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. GETCHYA hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on a mobile device owned or leased solely by you, for your personal use. You acknowledge that GETCHYA may from time to time issue upgraded versions of the Mobile Applications and may automatically electronically upgrade the version of any Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree to timely upgrade the Mobile Application in the event there is no automatic update. You further agree that the terms and conditions of this Agreement will apply to all upgrades to the Mobile Applications. Any third party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third party end user license agreement, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and GETCHYA or its third party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. GETCHYA reserves all rights not expressly granted under this Agreement with respect to the Mobile Applications and otherwise. If any Mobile Application is being acquired on behalf of the United States Government, then the following provision applies: The Mobile Application will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR § 227.7202 and FAR § 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Platform and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originate in the United States and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Platform.
The following applies to any Mobile Application you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and GETCHYA, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to GETCHYA as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to GETCHYA as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, GETCHYA, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and GETCHYA acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software.
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and GETCHYA only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) GETCHYA, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to GETCHYA’s Google-Sourced Software.
THE PLATFORM, THE SERVICES, THE MATERIALS, AND ALL OTHER CONTENT ON THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE SERVICES, THE PLATFORM, THE MATERIALS AND ALL OTHER CONTENT ON THE PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GETCHYA DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. GETCHYA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE PLATFORM, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT GETCHYA) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
GETCHYA SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND GETCHYA’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GETCHYA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
GETCHYA RELIES UPON RESTAURANTS, STORES AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. GETCHYA DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
- BANNED ITEM LIST
YOU ARE NOT ALLOWED TO GIVE, DELIVER, OR SEND ANY OF THE FOLLOWING ITEMS USING THE PLATFORM, THE SERIVCES OR VIA ANY DELIVERY CONTRACTORS:
● Any items for which that you do not have permission to send
● Either people or live animals
● Illegal items
● Firearms, weapons, ammunition, and their parts
● Highly perishable food or beverages
● Pharmaceutical products, over-the-counter medications, vitamins, or supplements
● Money, gift cards, lottery tickets, or transferable securities
● Recreational drugs, drug paraphernalia, or tobacco products
● Dangerous or hazardous items, including explosives, items that are poisonous or flammable, substances and material identified in the Hazardous Materials Table in 49 CFR section 172.101, or material determined to be hazardous under 49 U.S.C. section 5103 et. seq. and transported in a quantity requiring placarding according to regulations prescribed under 49 CFR, Subtitle B, Chapter I, Subchapter C, hazardous waste (including but not limited to hypodermic needles), or medical waste
● Stolen goods
● Fragile items
● Sexual aids or obscene or pornographic material
● Livestock, regulated species or animal parts, bloods, or fluids
ANY ATTEMPT TO TRANSPORT ANY OF THE ABOVE ITEMS, OR ANY OTHER ITEMS WE DEEM OBJECITOABLE, IS A BREACH OF THIS AGREEMENT, AND, IF DISCOVERED, MAY BE REFUSED OR REJECTED BY THE DELIVERY CONTRACTOR.
- LIMITATION OF LIABILITY
You understand and agree that a fundamental element of the Platform, the Services and this Agreement is the mutual desire to streamline the Platform and the Services to make them efficient and easy to use, and to provide the Services at a low cost. As consideration for this efficiency and lower cost for all users of the Platform and the Services, you understand and agree to the limitations on remedies and liabilities set forth in this Section 11.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL GETCHYA BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF GETCHYA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE PLATFORM OR BY GETCHYA. GETCHYA ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE PLATFORM. GETCHYA ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL GETCHYA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED THE LESSER OF (A) THE AMOUNT PAID BY YOU TO GETCHYA WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE ISSUE GIVING RISE TO YOUR CLAIM, OR (B) $500. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.
YOU AND GETCHYA AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND GETCHYA AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND SERVICES.
- IMPORTANT NOTE TO NEW JERSEY CONSUMERS
- THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE, AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING, WITHOUT LIMITATION, THE NEW JERSEY PRODUCTS LIABILITY ACT); AND (D) THE FLORIDA GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW).
- INTERNET DELAYS
You agree to indemnify, defend, and hold GETCHYA and the other Releasee Parties harmless from and against any and all claims, damages, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from (i) your breach of any provision of this Agreement; (ii) your activities in connection with the Platform or the Services; or (iii) the User Content or other information you provide to us through the Platform.
- THIRD PARTY LINKS
Any information, statements, opinions, or other information provided by third parties and made available on or through the Platform are those of the respective author(s) and not us. We do not guarantee the validity, accuracy, completeness or reliability of any opinion, advice, service, offer, statement, or other content on the Platform other than those from GETCHYA’s authorized representatives acting in an official capacity. Under no circumstance will we be liable for or in connection with any loss or damage caused by your reliance on any such third-party content.
The Platform may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions (“Third Party Websites”). GETCHYA does not review, monitor, operate and/or control the Third Party Websites and GETCHYA makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. If you decide to visit and/or provide information, materials and/or other content to any Third Party Website, you do so at your own risk, and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. By providing access to Third Party Websites, GETCHYA is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those Third Party Websites. Links do not imply that we are legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links; or that any linked site is authorized to use any of our trademarks, logos, or copyright symbols. GETCHYA reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES, APPLICATIONS, SERVICES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH THIRD PARTIES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
- ADDITIONAL TERMS
- COPYRIGHT POLICY
GETCHYA respects the intellectual property of others, and we ask all of our users to do the same. It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”). This section describes the information that should be present in these notices and the take down procedure we follow with respect to allegedly infringing material. If we receive proper notification of claimed copyright infringement, our response to these notices may include removing or disabling access to the allegedly infringing material and/or terminating or suspending users. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the provider of the allegedly infringing content so that they may make a counter notification pursuant to the DMCA. It is our policy to accommodate and not interfere with standard technical measures used by copyright owners to identify or protect their copyrighted works that we determine are reasonable under the circumstances.
If you believe that any content on the Platform infringes upon any copyright which you own or control, you may send a written notification to our designated copyright agent (the “Designated Agent”), identified below, with the following information:
- A description of the copyrighted work or other intellectual property that you claim has been infringed, with enough detail so that we can identify the alleged infringing material;
- The URL or other specific location on the Platform that contains the alleged infringing material described in (a) above, with reasonably enough information to enable us to locate the alleged infringing material;
- Your name, mailing address, telephone number and email address;
- The electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf;
- The following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”; and
- The following statement: “I swear, under penalty of perjury, that the information in the notification is accurate, and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”; and
- a physical or electronic signature of the owner or person authorized to act on behalf of the copyright owner.
Designated Agent: GETCHYA LLC
Attention: Copyright Agent
1515 SE 17th Street
Fort Lauderdale, FL 33316
To notify the provider of the allegedly infringing material to which we have removed or disabled access, we may forward a copy of your infringement notice, including your name and email address to the provider of the allegedly infringing material.
In accordance with Section 512(i)(1)(a) of the DMCA, we will terminate the Account of any users who, in our sole discretion, are deemed to be repeat infringers. Knowingly misrepresenting in a notification that material is infringing can subject you to damages, including costs and attorneys’ fees, incurred by us or the alleged infringer.
If you receive an infringement notification from us, you may file a counter notification pursuant with our Designated Agent pursuant to the DMCA. To file a counter notification, please provide our Designated Agent with the following information:
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed, or access was disabled;
- Your name, mailing address, telephone number and email address;
- The following statement: “I consent to the jurisdiction of Federal District Court for the [insert the federal judicial district in which your address is located]”;
- The following statement: “I will accept service of process from [insert the name of the person who submitted the infringement notification] or his/her agent”;
- The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the affected material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled”; and
- Your signature, in physical or electronic form.
Upon receipt of valid counter notification, we will promptly provide the person who provided the original infringement notification with a copy of your counter notification and inform that person that we will replace the removed material or cease disabling access to it in 10 business days. Further, we will replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of your counter notice, unless Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Platform.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying GETCHYA and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with GETCHYA’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
- TERMINATION AND VIOLATIONS OF THE AGREEMENT
The Platform and this Agreement are in effect until terminated by us. In addition to any right or remedy that may be available to us under applicable law, we may suspend, limit, or terminate all or a portion of your access to the Platform, any Mobile Application or any of the Platform’s features at any time with or without notice and with or without cause, including without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement. Without limiting the foregoing, your rights under this Agreement will terminate automatically without notice if you fail to comply with any term of this Agreement. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the Platform and Services provided herein.
Upon termination of this Agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the Platform and the Services; and (ii) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Conduct and Your User Content;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Indemnity,” (vi) “Termination and Violations of this Agreement;” (vii) “Choice of Law,” (viii) “Dispute Resolution;” (ix) “Waiver and Severability,” and (x) “Entire Agreement.”
Even after the termination of this Agreement or of your Account or access to the Platform, any User Content you have posted or submitted may remain on the Platform indefinitely.
GETCHYA reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the Platform and/or Services from a particular account, device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. Any purported assignment by you in violation of this section shall be null and void. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent.
Our Platform is not designed to appeal to minors, and we do not knowingly attempt to solicit or receive any information from children under 13. YOU MUST BE AT LEAST 13 TO ACCESS AND USE OUR SITES. As stated above, if you are under the age of majority in your home state, which is 18 in most states, you may not establish a registered Account with us, and you should use our Sites only with the supervision of a parent or guardian who agrees to be bound by this Agreement. Additionally, the Platform or sections of the Platform, as well as promotions, programs, and commerce we may offer on the Platform, may be explicitly limited to people over the age of majority. If you are not old enough to access the Platform or certain sections or features of the Platform, you should not attempt to do so.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at OnGuard Online. Please note that we do not endorse any of the products or services listed at such sites.
- CHOICE OF LAW
You acknowledge and agree that your access to and/or use of the Platform, the Services, the Materials, and other content on the Platform is subject to all applicable international, federal, state, and local laws and regulations. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, U.S.A., without regard to its conflict of laws principles.
- DISPUTE RESOLUTION
YOU AND GETCHYA MUTUALLY AGREE TO RESOLVE ANY AND ALL COVERED JUSTICIABLE DISPUTES BETWEEN THEM EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, ON AN INDIVIDUAL BASIS, INSTEAD OF A COURT OR JURY TRIAL. This means you may not bring any legal action, including any class action, against GETCHYA, nor may you participate in such an action brought by another person. The terms of this Section (this “arbitration agreement”) requires the arbitration of any claims that GETCHYA or you may have against the other or against any of their officers, directors, employees, subcontractors, or agents in their capacity as such or otherwise, direct or indirect parents and subsidiaries, and affiliates, agents, successors or assigns, each and all of which may enforce this
arbitration agreement as direct or third-party beneficiaries.
WAIVER OF JURY TRIAL. YOU AND GETCHYA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and GETCHYA are instead electing to have claims and disputes resolved by arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
Governing Law. This arbitration agreement is intended by GETCHYA and you to be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (the “FAA”) to the fullest extent permitted by law. To the extent that the FAA is found to not apply to any issue that arises under this arbitration agreement or the enforcement hereof, then that issue shall be resolved under the laws of the state of Florida. You and GETCHYA mutually agree, in particular but without limitation, that if a court of competent jurisdiction finds that the FAA does not require or provide for enforcement of this arbitration agreement, then the laws of the state of Florida regarding enforcement of arbitration provisions shall apply.
Application; Coverage. Except as expressly provided below regarding enforcement of intellectual property rights, this arbitration agreement applies to any and all claims or controversies, past, present or future, arising out of or relating to this Agreement, this arbitration agreement, your use of the Platform and/or the Services, any payments made by you through the Platform, the termination of this Agreement , claims of harassment, retaliation, or discrimination, and all other aspects of your relationship (or the termination of your relationship) with GETCHYA, whether arising under federal, state or local statutory and/or common law. You and GETCHYA agree that the mutual obligations contained in this Agreement and to arbitrate disputes provide adequate consideration for this arbitration agreement.
Service. If either party initiates arbitration, the initiating party must notify the other party in writing
via first class U.S. Mail, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (i) the name and address of the party seeking arbitration; (ii) a statement of the legal and factual basis of the claim; and (iii) a description of the remedy sought. Any demand for arbitration by you must be delivered to GETCHYA to the following address: GETCHYA LLC, Attention: Legal Disputes, 1515 SE 17th Street, Suite 121, Fort Lauderdale, FL 33316. Any demand for arbitration by GETCHYA may be delivered to you at your home or business address, as set out in your then-current Account. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
Class and Collective Action Waivers. You and GETCHYA mutually agree that by entering into this arbitration agreement, both waive their right to have any covered dispute or claim brought, heard, or arbitrated as a class action and/or collective action, and an Arbitrator will not have any authority to hear or arbitrate any class and/or collective claim (“Class Action Waiver”). Notwithstanding any other clause contained in this arbitration agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an Arbitrator. The Class Action Waiver will be severable from this arbitration agreement in any case, in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void, or voidable. In such case, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
Proceedings. Except as otherwise stated in this arbitration agreement, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), subject to the following:
- The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. Unless the parties agree otherwise, the arbitrator shall be an attorney experienced in the law in the underlying dispute and licensed to practice law in the state in which the arbitration is convened or a former judge from any jurisdiction.
- Unless You and GETCHYA agree otherwise, the arbitration will be conducted in Broward County, Florida.
- Unless applicable law provides otherwise, as determined by the arbitrator, you and GETCHYA agree to equally split all of the arbitrator’s fees and costs. Each party will pay for its own costs and attorneys’ fees, if any.
- The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this arbitration agreement including, but not limited to any claim that all or any part of this arbitration agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and GETCHYA.
- After ,taking into consideration that arbitration is intended to be a more efficient method for resolving disputes than the courts, the arbitrator is authorized to issue orders (including subpoenas to third parties) allowing the parties to conduct reasonable discovery.
- Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration.
- The arbitrator shall apply the applicable state or federal substantive law and be bound by applicable principles of law.
- The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute.
- The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this arbitration agreement).
- The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party.
- The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and GETCHYA.
No Effect on Independent Contractor Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND GETCHYA RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR.
Survival. This arbitration agreement will survive any termination of your relationship with GETCHYA.
Changes. GETCHYA reserves the right to change this “Dispute Resolution” section, but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if GETCHYA changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Platform after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing GETCHYA written notice of such rejection by mail or hand delivery to the address set forth on our website, Attn: Dispute Resolutions, or by email from the email address associated with your account to: email@example.com within 30 days of the date such change became effective, as indicated in the “Effective” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and GETCHYA in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights.
- WAIVER AND SEVERABILITY
No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default. If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.
- ENTIRE AGREEMENT
If you have any questions regarding this Agreement, please visit our “Contact Us” page for answers and our contact information.
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