Terms & Conditions
Last Updated: June 30th, 2023
PLEASE READ THE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT CONSTITUTE A LEGAL AGREEMENT BETWEEN COOKIN INC., COOKIN USA CORP. AND ITS REPRESENTATIVES, SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, “COOKIN”, “WE”, “US” OR “OUR”) AND YOU AND THE ENTITY (AS DEFINED BELOW) YOU REPRESENT, AS APPLICABLE (“YOU” OR “YOUR”). BY ACKNOWLEDGING THIS AGREEMENT AND/OR USING THE COOKIN SERVICES (AS DEFINED BELOW), YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE WITHOUT LIMITATION OR QUALIFICATION TO BE BOUND BY THIS AGREEMENT AND YOU ACCEPT ALL OF ITS TERMS.
1. This Agreement
1.1 Acceptance of this Agreement
By accessing the website located at [https://www.cookin.com] (the “Site”), installing or using Cookin’s mobile application(s) (“Mobile App(s)”), installing or using any other software supplied by Cookin or accessing any information, function, feature, application, product or service made available by Cookin or registering an account with Cookin (the “Service(s)”), you are a “User” and you hereby represent and warrant that:
- if you are an individual, you are of legal age in the jurisdiction in which you reside to form a binding contract with Cookin (the “Minimum Age”) and you have the authority to enter into this Agreement personally; and
- if you are representing, an entity, organization, company or other group (each an “Entity”), you are an authorized representative of such Entity and you have the authority to enter into this Agreement on behalf of such Entity and to bind such Entity to this Agreement.
If you do not agree to be bound by this Agreement, personally or on behalf of the Entity, as applicable, you may not access or use (or continue to access or use) the Service.
Cookin reserves the right, at our sole discretion, to change or modify the terms of this Agreement at any time, effective upon posting an updated version of this Agreement through the Service, and indicating at the top of this page the date these terms were last revised. If the modifications are significant, we will use commercially reasonable efforts to provide you with prior notice via email or other reasonable means. You should regularly review this Agreement, as any continued use of the Service after the date on which an updated version of this Agreement becomes effective, constitutes your agreement. In the event that you do not accept an updated version of this Agreement, your sole and exclusive remedy is to cease your access and use of the Services.
2. The Service
2.1 Description of the Service
The Service is a technology platform that provides an online marketplace in which personal chefs, caterers and other persons may list, offer and sell and deliver food items and related products and services (collectively, the “Meal(s)”) to the general public. Users who purchase Meals through the Service are “Customers” and Users who list, prepare and sell Meals through the Service are “Sellers”. A User may be both a Customer and a Seller. All purchases of Meals are made directly between the Customer and the Seller (and any agreement for purchase and sale is between the Customer and the Seller).
Cookin offers a marketplace and is not itself a Seller. Cookin is not a party to any transaction involving the purchase or sale of Meals. Cookin may help facilitate the resolution of disputes between Customers and Sellers, but Cookin has no control over and does not guarantee (a) the existence, quality, safety, authenticity or legality of Meals offered or sold on the Service; (b) the truth or accuracy of a Seller’s content or listings on the Service; (c) the ability of a Seller to sell Meals through the Service and deliver Meals within required delivery windows; (d) the ability of Customers to pay for Meals purchased through the Service; or (e) that a Customer or Seller will actually complete a transaction, effectuate trouble-free delivery and shipping or return a Meal through the Service.
2.2 Sellers on Cookin
Sellers are independent business owners and independent contractors. Sellers are not employees, partners, representatives, agents, joint venturers, dependent contractors or franchisees of Cookin. Cookin does not prepare, cook, package or deliver Meals.
Each Seller is solely responsible for complying with all local, provincial, state, national or international applicable laws, rules and regulations and standards that apply in the jurisdiction(s) in which the Seller is located and/or conducts business (“Applicable Law”), including but not limited to those pertaining to the preparation, sale, marketing, and packaging of all Meals listed, offered and sold through the Service. Each Seller is solely liable for the quality, safety, freshness and accuracy of its Meals. Although Cookin requires its Sellers to pass food and safety certifications, kitchen inspections and food tastings, we do not verify in each instance all credentials, representations, products, services or prices offered by Sellers, the quality or accuracy of the Meals or whether Sellers or Meals comply with Applicable Law. Cookin will not be liable or responsible for any Meals provided by Sellers that are a cause of damages or injury or that do not meet your expectations in any manner.
Depending on the jurisdiction, Cookin may enter into agreements with courier service providers (“Courier(s)”). If a Seller or Customer chooses to use a Courier to deliver a Meal, Cookin is not offering such delivery services and has no liability or responsibility for the actions or inactions of any Courier. Cookin will not be liable or responsible for any delivery services provided by a Courier or any errors, omissions or misrepresentations made by a Courier. Couriers are required to comply with all Applicable Law.
2.4 Cookin Kitchen Space
Subject to availability, Cookin may also offer Sellers in certain jurisdictions access to commercial cooking facilities for the preparation of Meals to be sold through the Service (“Cookin Kitchen Space”). Each Seller that accesses Cookin Kitchen Space is solely responsible for its use of and conduct at the Cookin Kitchen Space, for all Meals prepared at the Cookin Kitchen Space, and for complying at all times with all Applicable Law, the Cookin Code of Conduct for Sellers (the“Cook Code of Conduct”) and the Cookin Commercial Kitchen Agreement for Sellers (the “Commercial Kitchen Agreement”), as applicable. Cookin does not guarantee or make any representation or warranty with respect to the Cookin Kitchen Space or its suitability for the Seller’s operations, and neither Cookin nor any of its third party landlords will be liable or responsible for any damages or injury suffered or caused by the Sellers in connection with its use of Cookin Kitchen Space, or by any Meals prepared by Sellers using Cookin Kitchen Space.
2.5 Mobile Service
The Service may include certain services that are available via a mobile device, including but not limited to (a) the ability to upload User, Seller or Customer content to the Service via a mobile device; (b) the ability to access or browse the Service or the Site via a mobile device; and (c) the ability to access certain features through a mobile application downloaded and installed onto a mobile device (collectively, the “Mobile Services”). To the extent you access any Mobile Services, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your wireless service carrier, and not all Mobile Services may work with all wireless service carriers or mobile devices.
By using the Mobile Services, you agree that we may communicate with you regarding the Service by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that any messages from Cookin intended to be sent to you are being delivered to the correct person. You acknowledge and agree that your use of the Mobile Services must be in accordance with the usage rules established by your wireless service carrier and mobile device platform or service provider.
2.6 Account Registration, Access and Security
Account registration is available only to individuals and Entities who form legally binding contracts under Applicable Law. Without limiting the foregoing, the Service is not available to individuals or Entities under the Minimum Age or to Users who are temporarily or permanently suspended from the Service. If you do not qualify, you may not use the Service.
Additionally, Cookin reserves the right to refuse access to or use of the Service, including your ability to complete your registration for or to access your account, by anyone who breaches this Agreement or for reasons related to the Cook Code of Conduct, which are meant to protect the safety of Cookin Users, prospective users and employees. Cookin may suspend or terminate any account, at any time, in its sole discretion. You are only authorized to create and use one account for the Service and are prohibited from using alter egos or other disguised identities when using the Service.
You are responsible for maintaining the confidentiality of your password and account and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Cookin of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you securely log off from your account at the end of each session when accessing the Service. Cookin will not be liable for any loss or damage arising from your failure to comply with this Section.
2.7 Modifications to the Service
Cookin reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Cookin shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or any loss or damage arising therefrom.
2.9 Terminating Your Account
You may suspend or terminate your account at any time and without cost, but you will remain liable for any outstanding purchases, fees or other charges incurred through the Service. Once an account is terminated, Cookin will not issue refunds for any amounts previously incurred through the Services.
In certain cases, Cookin may not permit you to terminate your account, including but not limited to (a) to evade an investigation; (b) where the account has open or pending purchases or payment transactions; and (c) where the account has outstanding purchases fees or other charges incurred through the Service.
2.10 General Practices and Limits Regarding Use and Storage
You acknowledge that Cookin may establish general practices and limits concerning use of the Service. You agree that Cookin has no liability or responsibility for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that Cookin reserves the right to suspend or terminate accounts that are inactive for an extended period of time. You further acknowledge that Cookin reserves the right to change its general practices and limits at any time, in its sole discretion, with or without notice.
3. Conditions of Use
3.1 User Conduct
You are solely responsible for all descriptions, pictures, listings, information, data, text, music, sounds, graphics, videos, messages or other materials that you upload, post, publish, send or display (hereinafter, “upload”) on or through the Service (“User Content”). Provided below are examples of the kind of User Content and/or use of the Service that is illegal or prohibited by Cookin. Cookin reserves the right to investigate and take appropriate action, including but not limited to legal action, against anyone who, in Cookin’s sole discretion, violates this Section, including but not limited to, removing the offending User Content from the Service, suspending or terminating the offending account and reporting you to law enforcement authorities.
You agree to not use the Service to:
- sell, post or otherwise transmit any User Content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful or otherwise considered objectionable in Cookin’s sole discretion; (ii) you do not have a right to use, sell or transmit under any law or under any contractual or fiduciary relationship; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “contests”, “sweepstakes” or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications tools or equipment; or (vii) in Cookin’s sole discretion, is considered objectionable or which restricts or inhibits any other User or prospective user from using or enjoying the Service, or which may expose Cookin or its Users to any harm or liability of any type;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- solicit personal information from anyone under the Minimum Age;
- harvest or collect email addresses or other contact information of Users through the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services other than Meals intended to be prepared, sold and purchased through the Service;
- use the Service to request, make or accept a Meal independent of the Service for any purpose, including but not limited to circumvent any fees that would otherwise apply to such transaction;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- violate any Applicable Law or any rule, regulation or standard having the force of law;
- further or promote any criminal activity or enterprise, or provide instructional information about illegal activities;
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service; or
- monitor the Service’s functionality, performance, availability or any other competitive benchmarking-related purpose.
3.2 User Representations, Warranties and Agreements
You represent and warrant that:
- you will respect the privacy (including but not limited to private, family and home life) and data protection rights of Users with whom you communicate through the Service;
- you will fulfill the commitments you make to other Users, including your commitment to sell or purchase Meals;
- you will communicate clearly and respectfully when using the Service, including with respect to submitting reviews, sending User messages and communicating through any means with the Company;
- you will provide and accept Meals at the agreed time and on the agreed terms;
- you will only utilize the third party payment service provider specified or approved by Cookin to make or receive payment through the Service;
- you will act professionally and responsibly in your interactions with other Users;
- you will use your real name and/or business name in connection with your account profile and use of the Service;
- when using or accessing the Service, including when preparing, packaging, delivering (if applicable), providing or receiving Meals, you will act in accordance with all Applicable Law and in good faith; and
- you do not have any motivation, status or interest that Cookin may reasonably wish to know about in connection with the Service, including without limitation, if you are using or will or intend to use the Service for any competitive, journalistic, academic, investigative, unlawful or otherwise bad faith purpose.
If you are a Seller, you additionally represent and warrant that:
- you sell and offer to sell Meals through the Service as a sole proprietor, partnership, limited liability company, limited partnership, corporation or other business entity;
- you have the unrestricted right to earn income in the jurisdiction in which you sell and offer to sell Meals;
- you are solely responsible for identifying and obtaining any applicable regulatory, commercial or tax license, permit, certificate, filing, registration, insurance or other similar requirement (“License(s)”) required to sell and offer to sell Meals through the Service;
- you have obtained all applicable Licenses required to sell and offer to sell Meals through the Service and they are current, accurate and valid;
- you will use your real name or business name on your account profile;
- you will honor your commitments to other Users, including but not limited to by fulfilling Meal orders on time and as agreed upon with your Customer;
- you will only sell and offer to sell Meals safely and in accordance with all Applicable Law;
- for each Meal you sell or offer to sell, you will disclose all major allergens, as prescribed by applicable federal, state, provincial, local law.
- you will only cook food in a location that you are permitted under Applicable Law to cook food;
- you agree that we may (but are not required to) obtain information about you, including but not limited to your criminal records, and you agree to provide any further necessary consents and authorizations to facilitate our access to such records during the Term (as defined below) of this Agreement;
- you will pay all applicable federal, provincial, state and local taxes based on income earned for your sale of Meals through the Service (note, the Service platform will collect and remit taxes for the sale of Meals where applicable); and
- you agree not to market your Meals in a false or misleading manner, including but not limited to not making false representations or claims about the nutritional value of your Meals.
3.3 Seller Facilities
If you are a Seller, you additionally represent and warrant that with respect to your Seller facilities:
- your use of the Service to market, advertise, sell and offer to sell Meals does not violate any Applicable Law;
- you are in compliance with the terms of Cookin, which include but are not limited to the following requirements:
- you have reviewed and agreed to the Cook Code of Conduct;
- you have successfully passed an approved and accredited food safety certification;
- you have been issued all Licenses as required by Applicable Law;
- you have passed a food tasting;
- you have passed a virtual home kitchen inspection, and all period inspections thereafter; and
- you have performed the health and safety attestation prior to opening your kitchen or for purposes of your engagement as a Seller for the day;
3.4 Ingredients and Allergens
For any particular Meal and related goods and services offered or made available through the Service, Sellers agree to disclose all major allergens, as prescribed by Applicable Law. Cookin is not liable or responsible for the accuracy of the information and labeling of any Meals. Customers should be advised that Meals may be prepared in facilities using the same equipment that is used to prepare Meals containing other allergens, even if the allergen is marked as being absent from the particular Meal. Cookin shall not be liable for any illness, health problem or other damages, injury or loss that may result from any order, purchase, acquisition or consumption of any Meals and related goods or services acquired through the Service.
3.5 Seller Insurance
If you are a Seller, Cookin requires that you obtain appropriate insurance to cover the operation of your food facility and the preparation and sale of your Meals. If you are a Seller that accesses or uses Cookin Kitchen Space, you are required at all times during the Term (and for such period thereafter as is necessary to provide appropriate coverage for events having occurred during the Term) to carry and maintain appropriate insurance policies, at your own cost and expense, to cover your activities, which policy will name Cookin as an additional insured and shall provide at least the types and minimum amounts of coverage specified for Cookin Kitchen Space. Upon request, you agree to provide Cookin with certificates of insurance for all insurance coverage that you maintain.
To the extent you are a Seller, you hereby acknowledge and agree that Cookin maintains insurance for its own business operations, but it does not maintain insurance for the actions of Sellers or Customers. Your obligation to obtain and maintain insurance policies in the amounts specified in the Cook Code of Conduct shall not be limited in any way by reason of any insurance that may be maintained by Cookin, nor shall your performance of that obligation relieve you of liability under the indemnity provisions set forth in Section 9 of this Agreement.
Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including but not limited to whether or not your insurance policy will cover the actions or inactions of Customers or any third party.
3.6 Customer Reviews
To the extent you are a Customer, Cookin may allow you to submit reviews regarding your purchase of Meals. Any review you submit is considered User Content. Cookin has no obligation to screen or to delete reviews or related User Content, even if anyone considers a review objectionable or inaccurate.
Customers posting reviews must comply with the following criteria:
- reviewers must have firsthand experience with the Seller or Meal being reviewed;
- reviews must not contain offensive language, profanity, abusive, discriminatory or hateful language or references to illegal activity;
- reviewers must not be affiliated with competitors if posting negative reviews;
- reviewers must not make any conclusions as to the legality of conduct; and
- reviewers must not post any false statements or organize a campaign encouraging others to post reviews, whether positive or negative.
Cookin may, in its sole discretion, accept, reject or remove any portion of or the entirety of any review and associated User Content, whether or not such review is expressly in breach of the criteria set out above. Reviews are not endorsed by Cookin and do not represent the views of Cookin. Cookin does not assume liability or responsibility for any review or for any claims, liabilities or losses resulting from any review.
3.7 Marketplace Risk
Cookin is not affiliated with or endorsed by any Seller, restaurant or other meal preparation service made available through the Service. Beyond its capacity as a marketplace and technology platform, Cookin is not a party to or involved in any transaction between Customers and Sellers through the Service, and does not act as a Customer, Seller (or affiliate of a Customer or Seller) or broker with respect to any transactions made through the Service. There are risks that you assume when dealing with other Users (including those who may be acting under false pretenses) and all such risks are borne by you, and not Cookin. We encourage you to use the various functionalities of the Service (e.g., Seller profiles, Customer reviews) to help evaluate the User with whom you are dealing.
Cookin does not control or actively monitor User Content or the behavior of Users. As a result, Cookin does not guarantee or endorse the legality, authenticity, quality or safety of any Meals offered or sold, the truth or accuracy of any User Content or the ability of Sellers to sell Meals or of Customers to purchase Meals. Cookin reserves the right to delay the completion of any transaction for a reasonable period of time for purposes of fraud detection and otherwise protecting Cookin and its Users from illegal or wrongful activities or other violations of this Agreement. While Cookin takes pride in its customer service, we cannot and do not guarantee that all transactions will be properly completed by the Users involved, and we cannot and do not guarantee the ability or intent of each User to fulfill their obligations in any transaction.
3.8 Sellers as Independent Contractors
Users using the Service in their capacity as a Seller do so in their personal capacity as an independent contractor and not as an employee of Cookin.
To the extent that you are a Seller, you agree that:
- you are an independent contractor and not an employee of Cookin;
- you shall be solely responsible for determining the means and manner of the work performed to prepare the Meals you offer and sell through the marketplace;
- you are solely responsible for the manner and hours in which your services are performed;
- you are responsible for and will comply with all Applicable Law and License requirements, including but not limited to those applicable to independent contractors and maximum working hours regulations;
- this Agreement does not create an association, joint venture, partnership, franchise or employer/employee relationship between you and Cookin, or you and any Customer;
- you will not represent yourself as an employee or agent of Cookin or any Customer;
- you will not be entitled to any of the benefits that Cookin may make available to its employees, including worker compensation benefits in the event of injury; and
- you will not engage a Customer in any way that may jeopardize your status as an independent contractor.
3.9 Commercial Use
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service or access to the Service.
3.10 International Use; Export Control
Canada and the United States control the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any part of the Service to countries or persons prohibited under export control laws. By accessing or using the Service, you expressly agree that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export and re-export of the Service.
4. Purchase and Sale Transactions
Registering an account with Cookin and accessing the Service is free. However, Cookin may charge certain fees for various transactions effected through the Service. Fees may vary based on demand, transaction attributes and/or other factors. Fees are quoted in the currency of the country in which the Service takes place. Cookin reserves the right to add, change or discontinue, temporarily or permanently, some or all of the fees associated with use of the Service from time to time. Your continued use of the Service after the fee change becomes effective constitutes your agreement to pay the new fee.
Meals purchased by and delivered to Customers in locations in Canada and the U.S. may be subject to applicable federal, provincial, state or local sales or use tax or other transaction-based taxes required in the food services industry of a particular location (“Taxes”). The amount of Taxes is based on a number of factors, including but not limited to a Customer’s designated delivery address, and/or the location of the Seller. In many jurisdictions, Cookin may be required to collect certain Taxes from the Customer and remit such taxes directly to the appropriate authorities.
4.3 Customer Responsibility
Customers are responsible for paying the applicable purchase price for a purchased Meal and any applicable delivery costs, service fees, other fees and applicable Taxes. Delivery costs, service fees and Taxes attributable to the sale of any Meals will be displayed to Customers before confirmation of any purchase.
4.4 Seller Responsibility
Sellers are responsible for paying applicable Cookin commission, as set forth in the Fee Schedule to the Cook Code of Conduct, as well as a Seller’s own taxes imposed or measured by such Seller’s net income, net profits, income, profits, and/or revenues associated with the sale of any Meals through the Service.
4.8 Promotions; Credits
Cookin may from time to time offer Customers certain promotions, incentives or credits (“Promotions”) towards the purchase of Meals and/or fees associated with use of the Service, and Customers may use such Promotions in accordance with their terms. Depending on the type of Promotion used, it may reduce the amount of taxes that apply to a Customer’s order. The application of the Promotion will be reflected at the time of checkout and on the receipt of purchase. Promotions are personal to the Customer that they are offered to and may not be shared or redeemed by anyone else unless it is explicitly permitted by the terms of that Promotion.
Sellers may also offer Promotions to their customers through the Service and are solely responsible for any costs associated with redemption of that Promotion.
5. Intellectual Property Rights
During the Term and in accordance with this Agreement, Cookin grants you a limited, revocable, non-exclusive, non-assignable, non-transferable and non-sublicensable license to access and use the Service.
5.2 Cookin IP
Cookin alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service, all content contained therein (excluding User Content) and all technology and software underlying the Service or distributed in connection therewith (“Cookin Technology”), as well as the collective ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing the Services hereunder, including any derivative works, improvements, enhancements and/or extensions made to the Services and any information reflecting the access or use of the Service by or on behalf of any User, including but not limited to visit-, session-, impression-, click through- or click stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing (the“Usage Data”).
The Cookin name and logos are trademarks and service marks of Cookin (collectively, the “Cookin Trademarks”). Nothing in this Agreement or the Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Cookin Trademarks without our prior written consent in each instance, which may be withheld in our sole discretion. All goodwill generated from the use of Cookin Trademarks will inure to our exclusive benefit. Other names and logos used and displayed through the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Cookin.
Except as expressly authorized by Cookin, you agree not to modify, copy, frame, scrape, rent, lease, loan, distribute, sell, re-sell, assign, sublicense, transfer, create derivative works of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the Cookin Technology, Usage Data and Cookin Trademarks (collectively, the “Cookin IP”), in whole or in part. In connection with your use of the Service, you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Cookin from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or Cookin IP other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Cookin.
5.3 Third Party Content
Each User retains all right, title and interest, including all related intellectual property rights, in and to its own User Content (unless specified otherwise). With respect to your User Content, you represent and warrant that you own all right, title and interest in and to such User Content, including but not limited to all copyrights and rights of publicity contained therein. By uploading or otherwise making available through the Service your User Content, you hereby grant Cookin a non-exclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”) provided by you to Cookin are non-confidential and non-proprietary, and Cookin will be entitled to the unrestricted use and dissemination of such Submissions for any purpose, commercial or otherwise, without notice, acknowledgment or compensation to you.
You acknowledge and agree that Cookin may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, Applicable Law or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property or safety of Cookin, its Users and the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Under no circumstances will Cookin be liable or responsible in any way for any content or materials of any third party (including User Content) (“Third Party Content”), including but not limited to any errors or omissions in any Third Party Content or any loss or damage of any kind incurred as a result of the use of any such Third Party Content. You acknowledge that Cookin does not pre-screen Third Party Content, but that Cookin and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Third Party Content that is made available through the Service. Without limiting the foregoing, Cookin and its designees will have the right to remove any Third Party Content that breaches this Agreement or is deemed by Cookin, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Third Party Content, including but not limited to any reliance on the accuracy, completeness or usefulness of such Third Party Content.
5.4 Copyright Complaints
Cookin respects the intellectual property of others and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights have been otherwise violated, you should notify Cookin of your infringement claim at email@example.com with the subject line: “Copyright Complaint”. Cookin will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act and other applicable intellectual property laws with respect to any alleged or actual infringement.
The term “Cookin Confidential Information” shall mean any confidential, secret or proprietary business, technical or financial information, documents or materials of Cookin, which is provided to the User in connection with this Agreement and the Service, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Cookin Confidential Information includes, but is not limited to, all information related to Cookin and its business that is not generally known to the public, including business processes, practices, methods, policies, plans, documents, manuals, records, data, research, financials, operations, services, strategies, techniques, agreements, software, algorithms and technologies.
You agree to use Cookin Confidential Information solely for purposes of using the Service as a Customer or Seller, as applicable. You shall not, either directly or indirectly, disclose, copy, distribute, re-publish or allow any third party to have access to any Cookin Confidential Information without Cookin’s prior written notification, except (a) to employees, agents and professional advisors on a need-to-know basis, provided that such persons are bound by confidentiality obligations as least as restrictive as this Agreement, and (b) to the extent you are legally required to do so by subpoena, administrative or judicial order, in which case, you shall (i) provide written notice to Cookin of such request or requirement to disclose Cookin Confidential Information immediately and prior to making any such requested or required disclosure of Cookin Confidential Information and (ii) allow Cookin to assert any available defenses to such requested or required disclosure of Cookin Confidential Information.
You agree to protect all Cookin Confidential Information in the same manner that you protect your own confidential, secret or proprietary information, but in no event using less than a reasonable standard of care.
7. Third Party Interactions
7.1 Third Party Sites and Resources
The Service may provide, or third parties may provide, links or other access to third party sites and resources on the Internet. Cookin has no control over such third party sites and resources and Cookin is not responsible for and does not endorse such third party sites and resources. You further acknowledge and agree that Cookin will not be liable or responsible, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, events, goods or services available on or through any such third party site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Cookin is not liable for any loss or claim that you may have against any such third party.
7.2 Third Party Distribution Channels
Cookin’s Mobile App may be made available through the Apple App Store, Android Marketplace or other mobile application distribution channels (“Distribution Channels”). If you download or otherwise gain access to the Mobile App through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. This Agreement is between you and Cookin only, and not with the Distribution Channel. To the extent that you utilize any other third party products and services in connection with your use of Cookin’s Services, you agree to comply with all applicable terms of any agreement for such third party products and services.
8. Limitation of Liability and Disclaimer of Warranties
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, LIABILITY OR CERTAIN DAMAGES OR LIMITATIONS OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY. IN SUCH JURISDICTIONS, THE LIABILITY OF COOKIN WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, COOKIN AND ITS THIRD-PARTY PROVIDERS (INCLUDING LANDLORDS) HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES (INCLUDING COOKIN KITCHEN SPACE), INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. COOKIN AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COOKIN AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE MEALS AND SERVICE WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER COOKIN NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COOKIN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, COOKIN DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY COOKIN, THE SERVICES ARE PROVIDED TO USERS ON AN “AS IS” BASIS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL COOKIN BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY CLAIM BASED UPON A THIRD PARTY CLAIM, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF COOKIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH ANY OTHER USER IN CONNECTION WITH THE SERVICE AND COOKIN WILL HAVE NO LIABILITY OR RESPONSIBILITY WITH RESPECT THERETO. COOKIN RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO BECOME INVOLVED IN ANY WAY WITH DISPUTES BETWEEN YOU AND ANY OTHER USER OF THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, COOKIN’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO ONE HUNDRED DOLLARS ($100).
You agree to release, defend, indemnify and hold Cookin and its affiliates and each of their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses (including reasonable legal fees), rights, claims, actions of any kind and injury (including death) arising out of or relating to (a) your breach or alleged breach of this Agreement and, if applicable, the Cook Code of Conduct; (b) the intellectual property rights of any person; (c) any Applicable Law including, without limitation, privacy and consumer protection laws; (d) your access to, use or misuse of the Service and any content provided through the Service; and (d) if applicable, your access to, use or misuse of Cookin Kitchen Space, and any damages or injury caused in connection thereto. Cookin will provide notice to you of any such claim, suit or proceeding. Cookin reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting Cookin’s defense of such matter.
10. Dispute Resolution
10.1 Agreement to Arbitrate
Except where prohibited by Applicable Law, you agree that any and all disputes, controversies or claims that arise from, relate to, or are connected with this Agreement or your access to or use of the Services, will be governed by Ontario law, excluding Ontario’s conflict of law rules, and shall be litigated exclusively through final and binding arbitration, pursuant to the Arbitration Act, 1991 (Ontario) (and, to the extent that the Arbitration Act, 1991 (Ontario) does not apply, pursuant to the International Commercial Arbitration Act (Ontario)) (the “Arbitration Law”). By agreeing to this Agreement, you agree that you and Cookin are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. Unless both you and Cookin agree otherwise, the arbitrator may not consolidate or join multiple claims or proceedings into an arbitration, and may not preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the party that commenced the arbitration and only to the extent necessary to provide relief necessitated by that party’s individual prayers for relief.
10.2 Arbitration Procedures
Arbitration will be conducted by a single neutral arbitrator in accordance with the ADR Institute of Canada’s (“ADRIC”) rules and procedures (the“ADRIC Rules”), as modified by this Section. If there is any inconsistency between any term of the ADRIC Rules and any term of this Section, the applicable terms of this Section will control. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, jurisdiction, and arbitrability of claims arising from, relating to, or connected with this Agreement or the Seller’s access to or use of the Services. The arbitrator can award the same damages and relief on an individual basis that a court can award to a party under this Agreement and Applicable Law. Unless you and Cookin agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location for the arbitration hearings, the determination shall be made by ADRIC or the arbitrator, if one has been appointed. If your claim is for $10,000 or less, Cookin agrees that you may choose whether the arbitration will be conducted in writing, through a telephonic hearing or by an in-person hearing. If your claim exceeds $10,000, the method of hearing will be determined by the arbitrator. Regardless of the method in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision and arbitral award sufficient to explain the essential findings and conclusions on which the award is based. Arbitral awards rendered by the arbitrator shall not be subject to any appeal, whether on questions of law, fact, or mixed fact and law, except as specifically permitted under the Arbitration Law.
10.3 Costs of Arbitration
Each party shall bear their own costs of an arbitration.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Notwithstanding the foregoing in this Section 10 – Dispute Resolution, the parties to this Agreement may:
- assert claims that would otherwise be subject to exclusive, final, and binding arbitration under this Section 10 in the Ontario small claims court if the claims fall within the monetary threshold jurisdiction of the Ontario small claims court. In this regard, the parties agree that all claims that might be brought pursuant to this Section 10(a) shall be litigated exclusively in the small claims court of Ontario and not the courts of any other jurisdiction, and the parties consent to personal jurisdiction in the courts of Ontario; or
- commence a court action that is not in the Ontario small claims court, but only if it is for the purpose of obtaining interim or interlocutory injunctive relief in aid of an arbitration under this Section 10, and provided that any other relief is sought by way of arbitration under this Section 10.
The parties agree that the law governing this Agreement and any dispute, claims, or controversies arising out of or related to this Agreement, excluding conflict of laws rules, shall be the laws of Ontario and the laws of Canada applicable therein.
If a court or the arbitrator decides that any term or provision of this Section is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section shall be enforceable as so modified.
11. Term and Termination
The term of this Agreement shall begin on the date you first entered into this Agreement and shall continue until terminated in accordance with this Agreement (the “Term”).
Cookin, in its sole discretion, may suspend or terminate your account (or any part thereof) or your access to or use of the Service and may remove and discard of any content (including User Content) associated with your account within the Service, for any reason, including but not limited to inactivity or if Cookin believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. Cookin may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to or use of the Service under any section of this Agreement may be affected without prior notice, and you acknowledge and agree that Cookin may immediately terminate your account and all related information and files in your account and/or bar any further access to or use of such files or the Service. Further, you agree that Cookin will not be liable to you or any third party for any termination of your access to or use of the Service.
Cookin reserves the right to take appropriate legal action, including pursuing civil, criminal or injunctive redress. Even after your right to access or use the Service is terminated or your account is terminated, this Agreement will remain enforceable against you.
Sections 2 (The Service), 5 (Intellectual Property Rights), 6 (Confidentiality), 8 (Limitation of Liability and Disclaimer of Warranties), 9 (Indemnification), 10 (Dispute Resolution), 11 (Term and Termination) and 12 (General) will survive the termination of this Agreement.
This Agreement constitutes the entire agreement between you and Cookin and governs your use of the Service, superseding any prior agreements between you and Cookin with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software.
This Agreement will be governed by the laws of the Province of Ontario. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Cookin agree to submit to the personal and exclusive jurisdiction of the provincial and federal courts located within Toronto, Ontario.
The failure of Cookin to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You may not assign this Agreement without the prior written consent of Cookin, but Cookin may assign or transfer this Agreement, in whole or in part, without restriction.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to this Agreement or other matters by displaying notices or links to notices generally on the Service.
13. Contact Us
Please contact us at the following addresses to report any violations of this Agreement or to pose any questions regarding this Agreement or the Service.
155 Wellington Street West, Toronto, Ontario M5V 3J7 Canada