TERMS OF USE

 

Effective: April 14, 2021

 

PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS OF USE (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND OVJ, LLC, A NEW YORK LIMITED LIABILITY COMPANY, (HERINAFTER, “OVJ,” “WE,” “US,” OR “OUR”).

 

SECTION 12 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND OVJ HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 12 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

 

1. Acceptance of this Agreement

 

We provide an online marketplace connection, using web-based technology that connects you and other consumers, other businesses, and independent delivery contractors (“Couriers”).  Our software permits consumers to place orders for food and/or goods from businesses, either for delivery or pickup (the “Software”). Once a delivery order is made, the Software notifies Couriers that a delivery opportunity is available and the Software facilitates completion of the delivery to the consumer. Once a pickup order is made, the Software communicates with the customer regarding the availability of the order for pickup. We are not a restaurant, delivery service, or food preparation business.

 

If you access our website located at www.domionline.com, install or use our mobile application, or access any information, function, or service available or enabled by us (each, a “Service” and collectively, the “Services”), or complete our account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that: 

a. You have read, understand, and agree to be bound by this Agreement; 

b. You are of legal age in the jurisdiction in which you reside to form a binding contract with us; and

c. You have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.

 

The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.

 

2. Modifications

 

Subject to Section 12(i) of this Agreement, we reserve the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

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3. Additional Terms and Policies

 

By using the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with our Privacy Policy, which is incorporated in this Agreement by reference. You also agree to abide by any of our additional policies for Users that are published on our website or mobile application.  Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.

 

4. Rules and Prohibitions

 

Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:

a. You will only use the Services for lawful purposes.

b. You will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes.

c. You will not engage in conduct that harms other Users, our employees, or our community.

d. You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.

e. You will only access the Services using means explicitly authorized by us.

f. You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.

g. You will not use the Services to cause nuisance, annoyance or inconvenience.

h. You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any of our vendors, Users or Couriers, unless we have given you prior permission to do so in writing.

i. You will not copy or distribute the Software or any content displayed through the Services, including vendors’ menu content and reviews, for republication in any format or media.

j. You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.

k. The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.

l. You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.

m. You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.

n. You will not use the Services in any way that could damage, disable, overburden or impair any of our servers, or the networks connected to any our servers.

o. You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any of our servers.

p. You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures we may use to prevent or restrict access to the Services or use of the Services or the content therein.

q. You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites.

r. You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.

s. You will not try to harm other Users, us, or the Services in any way whatsoever.

t. You will not engage in threatening, harassing, racist, sexist or any other behavior that we deem inappropriate when using the Services. 

u. You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.

v. You will not abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time users.

w. You will not attempt to undertake any of the foregoing.

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In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.

 

5. Contractors and Merchants Are Independent

 

You understand and agree that we provide a technology platform connecting you with independent food service providers and others that provide the products offered through the Services (“Merchants”), and independent third-party contractors who provide delivery services (“Couriers”). You acknowledge and agree that we do not prepare food or offer delivery services, and we have no responsibility or liability for the acts or omissions of any Merchant or any Courier. Merchant is the retailer; the services offered by us pursuant to this Agreement do not include any retail services or any food preparation services. We are not in the delivery business nor are we a common carrier. We provide a technology platform facilitating the transmission of orders by Users to Merchants for pickup or delivery by Couriers. We will not assess or guarantee the suitability, legality or ability of any Courier or Merchant. You agree that we are not responsible for the Merchants’ food preparation or the safety of the food or whether the photographs or images displayed through the Services accurately reflect the food prepared by the Merchants and/or delivered by the Courier, and do not verify Merchants’ compliance with applicable laws or regulations. We have no responsibility or liability for acts or omissions by any Merchant or Courier. 

 

You agree that the goods that you purchase will be prepared by the Merchant you have selected, that title to the goods passes from the Merchant to you at the Merchant’s location, and that, for delivery orders, the Courier will be directed by your instructions to transport the products to your designated delivery location. You agree that neither the Courier nor do we hold title to or acquires any ownership interest in any goods that you order through the Services.

 

6. User Account

 

You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the 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 User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify us immediately. We will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by us 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 we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). We may enable or require you to use a single pair of login credentials to use the Services. You agree not to create an account or use the Services if you have been previously removed by us, or if you have been previously banned from use of the Services.

 

7. User Content

 

a. User Content. We may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You further represent and warrant that any User Content that you submit, post and/or otherwise transmit through the Services (i) does not violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) does not contain material that is false, intentionally misleading, or defamatory; (iii) does not contain any material that is unlawful; (iv) does not violate any law or regulation; and (v) does not violate this Agreement. You hereby grant us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sub-licensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with our business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant us a license to use your username, first name and last initial, and/or other User profile information, including without limitation, your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to us herein shall survive termination of the Services or your account. We reserve the right in our sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. You agree that we may monitor and/or delete your User Content (but does not assume the obligation) for any reason in our sole discretion. We may also access, read, preserve, and disclose any information as We reasonably believe is necessary to (v) satisfy any applicable law, regulation, legal process, or governmental request, (w) enforce this Agreement, including investigation of potential violations hereof, (x) detect, prevent, or otherwise address fraud, security, or technical issues, (y) respond to User support requests, or (z) protect the rights, property or safety of us, our Users and the public.

 

b. Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to us through our suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that we have no obligation (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sub-licensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.

 

c. Ratings and Reviews. To the extent that you are asked to rate and post reviews of Merchants or other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by us and do not represent our views. We shall have no liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you agree that: (i) you will base any Rating or Review on first-hand experience with the Merchant or business; (ii) you will not provide a Rating or Review for any Merchant or business for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from a Merchant or business; (iv) any Rating or Review you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; and (v) your Rating or Review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such User Content without notice.

 

8. Communications with Us

 

By creating an account with us, you electronically agree to accept and receive communications from us, Couriers, or third parties providing services to us including via email, text message, calls, and push notifications to the cellular telephone number you provided to us. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of us, and/or a Courier, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing Settings in your account. To opt out of receiving promotional text messages from us, you must reply “STOP” from the mobile device receiving the messages. For purposes of clarity, delivery text messages between you and Couriers are transactional text messages, not promotional text messages. 

 

9. E-SIGN Disclosure

 

By creating an account with us, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing us at info@domionline.com with “Revoke Electronic Consent” in the subject line.

 

To view and retain a copy of this disclosure, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email us at info@domionline.com with contact information and your mailing address.

 

10. Intellectual Property Ownership

 

We alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services, or any intellectual property rights owned by Us. Our names, logos, and the product names associated with the Software and Services are trademarks of us or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.



11. Payment Terms

 

a. Prices & Charges. You understand that: (a) the prices for menu or other items displayed through the Services may differ from the prices offered or published by Merchants for the same menu or other items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu or other items are sold; (b) we have no obligation to itemize its costs, profits or margins when publishing such prices; and (c) we reserve the right to change such prices at any time, at its discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in- store totals. In those situations, we reserve the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on our income). In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, we reserve the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by us or its payments processor, using the preferred payment method designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your Use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.

 

b. No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. We have no obligation to provide refunds or credits, but may grant them, in each case in our sole discretion.

 

c. Promotional Offers and Credits. In our sole discretion, we may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer.

 

d. Fees for Services. We may change the fees for our Services as we deem necessary or appropriate for our business.  We may also charge merchant’s fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.

 

12. Dispute Resolution.

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 12 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

 

a. Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding our Services, to any products or services sold or distributed through the Services that you received as a User of our Services, or to any aspect of your relationship or transactions with us as a User of our Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) we both may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.

 

IF YOU AGREE TO ARBITRATION WITH US, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

 

b. Informal Resolution. We mutually agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. We both therefore agree that, before either you or OVJ may demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify us that you intend to initiate an informal dispute resolution conference, email info@domionline.com, providing your name, telephone number associated with your account (if any), the email address associated with your account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration.   The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

 

c. Arbitration Rules and Forum. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 12(b). If this notice is being sent to us, it must be sent to our attention and by email pursuant to paragraph 8. The arbitration will be conducted by the American Arbitration Association under its Commercial Arbitration Rules in effect as of the Effective Date of this Agreement and the venue for such arbitration shall be in Suffolk County, New York. 

 

d. Arbitrator Powers.  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 us.

 

e. Waiver of Jury Trial. YOU AND OVJ WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and OVJ are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

 

f. Opt Out. Our updates to this Agreement do not provide a new opportunity to opt out of the Arbitration Agreement for customers or Users who had previously agreed to a version of this Agreement and did not validly opt out of arbitration. We will continue to honor the valid opt outs of customers or Users who validly opted out of the Arbitration Agreement in a prior version of this Agreement. If you are a customer or User who creates an account for the first time on or after the Effective Date, you may opt out of this Arbitration Agreement. If you do so, neither you nor OVJ can force the other to arbitrate as a result of this Agreement. To opt out, you must notify us in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your OVJ account username (if any), the email address you currently use to access your OVJ account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: info@domionline.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.

 

g. 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 OVJ RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A COURIER. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A COURIER, OPTING-OUT OF THE ARBITRATION AGREEMENT SET FORTH IN THIS SECTION 12 HAS NO EFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH OVJ.

 

h. Survival. This Arbitration Agreement will survive any termination of your relationship with us. 

 

i. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if we makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.

 

13. Transactions Involving Alcohol

 

You may have the option to request delivery of alcohol products in some locations and from certain Merchants. If you receive your delivery in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction. You also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the Courier delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that neither OVJ nor the Courier can accept your order of alcohol products, and the order will only be delivered if the Merchant accepts your order. The Courier reserves the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated. If the Courier is unable to complete the delivery of alcohol products for one or more of these reasons, you are subject to a non-refundable fee equal to the price of purchase.

 

14. Indemnification

 

You agree to indemnify and hold harmless OVJ, LLC and its members, officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation, attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. We reserve the right, at your cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.

 

15. Disclaimer of Warranties

 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.

 

WE DO NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

 

16. Internet Delays

 

The Software and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in our Privacy Policy or as otherwise required by applicable law, we are not responsible for any delays, delivery failures, or damage, loss or injury resulting from such problems.

 

17. Breach and Limitation of Liability

 

a. General. You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost.  You understand and agree to the limitations on remedies and liabilities set forth in this Section 17 to keep the Software and Services simple and efficient, and costs low, for all Users.

 

b. Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, OVJ’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO US IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

 

c. Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW, WE SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE). 

  

18. Termination

 

If you violate this Agreement, we may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists. In addition, at its sole discretion, we may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, we reserve the right to take appropriate legal action, including without limitation, pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.

 

19. General

 

a. No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, OVJ or any third-party provider as a result of this Agreement or use of the Software or Services.

 

b. Choice of Law. This Agreement is governed by the laws of the State of New York consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.

 

c. Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

 

d. Notice. Where we require that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. 

 

e. Electronic Communications. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.

 

f. Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.

 

g. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and OVJ relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as Courier.

 

 

 

 

 

20. Contact Information

 

We welcome your questions or comments regarding the Terms via e-mail at: info@domionline.com.