SmartCooks LLC and its affiliates (“SmartCooks”, “we”, “us” or “our”) is offering you (“you” or “your”) our mobile service application (the “App”) for your use subject to these SmartCooks LLC Terms of Service (“Terms”). The SmartCooks App suggests customized, fast and healthy meal ideas and recipes based on information you provide to SmartCooks on what is actually available in your kitchen (the “Services”). Please make sure that you read and understand these Terms before you download the App, use any of our Services, or make use of any information, graphics or other materials made available on or through the Services (“Content”).
1. Accepting these Terms and Conditions
a. By clicking the “Accept” or similar button, creating an account, downloading our App or otherwise using our Services, you accept, without limitation or qualification, these Terms. These Terms constitute a binding contract between you and SmartCooks.
b. We may, at any time, modify these Terms by revising them. If we revise the Terms, we will post revised Terms on our website, through the Services or an updated version of our App. Your continued use of the Services constitutes your acceptance of any such revisions. If you do not agree to the new Terms, you must stop using the Services and App.
d. If you do not agree and accept, without limitation or qualification, these Terms, please do not create an account, download the App or use the Services. These Terms constitute the entire agreement between you and SmartCooks and govern your use of the App and Services, and supersede any and all prior agreements, written or oral, between you and SmartCooks regarding the App and Services (including, without limitation, any prior versions of these Terms). You may not modify these Terms except in a writing signed by us.
e. You may also be subject to additional terms and conditions that may apply when you use third-party content or third-party software.
2. Eligibility to Use the SmartCooks Services
By accepting these Terms, you affirm that you are (a) at least eighteen (18) years old, and (b) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party.
a. Creating an Account. In order to access the Services, you will need to create an account. To open an account, you must complete the registration process by providing us with true, current, complete and accurate information as prompted by the applicable registration form, and you will maintain and promptly update such information to keep it true, current, complete and accurate. You grant SmartCooks the right to independently verify any information that you provide through the Services about yourself, although SmartCooks does not routinely undertake any verification.
b. Activities under Your Account. You are responsible for maintaining the confidentiality of any password(s) you use to access the Services, and you are fully responsible for all activities that occur under your password(s) and your account. You agree to notify SmartCooks immediately of any unauthorized use of your account or any other breach of security. SmartCooks will not be liable for any loss that you may incur as a result of someone else using your password or account. Notwithstanding such notice, you could be held liable for losses incurred by SmartCooks or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
5. Use of the Services
a. Use of the Services. SmartCooks grants you a limited, revocable, non-exclusive, nonassignable, nonsublicensable license and right to access and use the Services through the App (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of SmartCooks), view information and use the Services that we provide in accordance with these Terms. Any other use of the Services is strictly prohibited. We reserve all rights not expressly granted in these Terms, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Services, the App and all related items. Use of the App is dependent upon your use of a supported mobile device and internet access.
b. Applicable Laws and this Agreement. You agree to comply with all applicable laws, ordinances and regulations and these Terms.
c. Promotions. You agree to receive newsletters, promotional materials, and other communications and materials relating to SmartCooks or the Services.
d. Changes to the Services. SmartCooks and the Services are constantly evolving and changing. As a result, the Services may change at any time and without prior notice. SmartCooks retains the right to, among other things, add, change, update, discontinue, suspend or limit the Services at any time at SmartCooks’ sole discretion. SmartCooks may also terminate or suspend any account or delete at any time, with or without notice.
e. Indemnification. You agree to indemnify, defend and hold harmless SmartCooks and its affiliates, and their respective officers, employees, users, licensors and partners, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, relating to or arising out of your access to or use of the App and Services (including any use by your employees or agents), your breach of these Terms or any activity related to your account (including negligent or wrongful conduct) by you or anybody using your account.
6. Your Content
SmartCooks makes no claim to ownership of any communication, material or other content that you provide to us (“User Content”). However, SmartCooks shall be free to use or disseminate any User Content on an unrestricted basis for any purpose, and you hereby grant SmartCooks an irrevocable, perpetual, worldwide, transferable, royalty-free, fully paid up, nonexclusive license, with the right to grant and authorize sublicenses, to use, reproduce, modify, distribute, create derivative works and otherwise exploit such User Content (including in digital form). You represent and warrant that you have all the rights necessary to allow SmartCooks and third-party providers to use your User Content as set forth in these Terms and transfer any User Content that you may provide to us anywhere in the world.
7. SmartCooks Intellectual Property
a. All materials available through the Services, including but not limited to derivative works based on User Content, and not provided by users of the Services are the property of SmartCooks, affiliated companies and/or third-party licensors, and are protected by copyrights, trademarks and other intellectual property rights. All trademarks, service marks, and trade names are proprietary to SmartCooks, or affiliated companies and/or third-party licensors.
b. Except as allowed in writing by SmartCooks, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, mirror, frame, republish, download, transmit, or create derivative works of the content of others, in whole or in part, by any means. You must not modify, decompile, or reverse engineer the App or any other software SmartCooks discloses to you. You must not remove, alter or obscure any copyright, patent, trademark or other proprietary or restrictive notice or legend contained or included in any part of the App or Services, and you agree to reproduce and copy all such notices and legends on all copies of any part of the Services or the App that you are allowed to make under these Terms, if any. Any rights not expressly granted in these Terms are reserved.
c. The Services that SmartCooks provides are in no way to be used by its members for infringement of any intellectual property rights of SmartCooks itself, its users, and other third-parties. You may not download, copy, reproduce, or in any other way use Content provided through the Services without the written consent of SmartCooks or the party who possesses ownership rights over the Content. 8. App Distributors
These Terms are between you and us only. We may use certain third parties to distribute our App and may use third parties for other Services. These third parties, such as Apple, Inc., Amazon, Inc. and Google, Inc. (“App Distributors”) have no warranty, maintenance, support or other service obligations with regard to our Services. We, and not the App Distributers, are solely responsible for the App and Services and related content. The parties agree that the App Distributors have no obligation to provide maintenance and support services with respect to the App or any other Services we offer.
a. YOUR ACCESS TO, USE OF AND RELIANCE ON THE SERVICES IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. THE SERVICES AND APP ARE PROVIDED “AS IS” “AS AVAILABLE” AND “WITH ALL FAULTS”. SMARTCOOKS IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS OR CORRECT USE OF THE INFORMATION YOU PROVIDE OR RECEIVE THROUGH THE APP. IF YOU RELY ON ANY CONTENT, INFORMATION OR RECOMMENDATION MADE THROUGH THIS APP, YOU DO SO SOLELY AT YOUR OWN RISK. TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, SMARTCOOKS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. SMARTCOOKS DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (1) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE THROUGH THE SERVICES BY ANY PARTY, (2) ANY CONTENT PROVIDED ON OR CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM THIRD PARTY WEBSITES LINKED TO THROUGH THE SERVICES.
c. SMARTCOOKS IS NOT LIABLE FOR ANY DAMAGES DUE TO MISCALCULATION, ERROR OR OMISSION BY USERS.
d. Some jurisdictions do not allow disclaimer of implied warranties. In such jurisdictions, some of the foregoing disclaimer may not apply.
10. LIMITATION OF LIABILITY
a. SMARTCOOKS SHALL NOT BE LIABLE FOR ANY ACCESS TO, USE OF OR RELIANCE ON THE APP OR SERVICES BY YOU OR ANYONE ELSE, OR FOR ANY TRANSACTIONS, COMMUNICATIONS, INTERACTIONS, DISPUTES OR RELATIONS BETWEEN YOU AND ANY OTHER PERSON OR ORGANIZATION ARISING OUT OF OR RELATED TO SMARTCOOKS OR CONTENT OR SERVICES ACCESSED THROUGH THE APP OR SERVICES.
b. YOUR USE OF THE SERVICES, APP AND ANY RELATED PRODUCTS IS AT YOUR OWN RISK. NEITHER SMARTCOOKS, NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS OR DIRECTORS, NOR ANY OF ITS AGENTS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, THE APP OR ANY RELATED CONTENT OR PRODUCTS, ARE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE APP OR SERVICES WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
c. SMARTCOOKS’ AGGREGATE LIABILITY, AND THE AGGREGATE LIABILITY OF ITS PARTNERS AND LICENSORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THE SERVICES, THE APP OR THESE TERMS IS LIMITED TO $100.
d. To the extent any jurisdiction does not allow the exclusion or limitation of direct, incidental or consequential damages, portions of the above limitations or exclusions may not apply.
a. These Terms will continue until terminated. You may terminate these Terms at any time and for any reason by deactivating your account and discontinuing your use of the Services and App. If you are using the App, you need to remove the App from all of your devices and stop using it. SmartCooks may also terminate or suspend your account or your use of the Services at any time and for any reason with or without notice and without liability, including if we reasonably believe that you have violated these Terms, you have created any risks to SmartCooks or we have decided to stop providing the Services.
b. If your account is terminated or you delete any User Content, SmartCooks will make reasonable efforts to make such User Content inaccessible. However, you acknowledge and agree that any such User Content may be retained in caches or backups and that copies of or references to your User Content may persist indefinitely due to the nature of the Services and the internet.
12. Applicable Law
a. These Terms are governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services, the App or these Terms will be brought solely in the federal courts located in the Northern District of California or the state courts located in Santa Clara County, California, as appropriate and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. Notwithstanding the foregoing, we will at all times have the right to commence proceedings in any other court of our choice with the appropriate jurisdiction for interim injunctive relief.
b. The Services are available to users globally. If you are located outside the U.S., you (i) acknowledge and agree that these Terms are only being offered in English, and that in the event of any translation of this Agreement, the English version shall govern; (ii) consent to the transfer, storage and processing of your information, including any User Content or personal information, in and to the U.S. and/or other countries; and (iii) acknowledge and agree that Services derived or obtained from SmartCooks may be subject to the U.S. export laws and the export or import laws of other countries, and you agree to comply strictly with all such laws and, in particular, shall: (1) obtain any export, reexport, or import authorizations required by U.S. or your local laws; (2) not use Services derived or obtained from SmartCooks to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (3) you understand that U.S. export control laws prohibit the export of certain technical data and software to certain territories, and that no software available from the Services may be downloaded or exported: into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the U.S. has embargoed goods; or anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
13. General Terms
a. You must not assign or otherwise transfer the Terms or any right granted hereunder. Any assignment in violation of this Section shall be null and void. SmartCooks may assign its rights and duties under these Terms to any party at any time without notice to you.
b. You agree that any material breach of Sections 3, 5, 6 and 7 of the Terms will result in irreparable harm to SmartCooks for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, SmartCooks will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if SmartCooks seeks such an injunction.
c. Rights and obligations under the Terms which by their nature should survive will remain in full effect after termination or expiration of the Terms.
d. Any express waiver or failure to exercise promptly any right under the Terms will not create a continuing waiver or any expectation of non-enforcement. If any provision of the Terms is held invalid by any law or regulation of any government, or by any court or arbitrator, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Terms will remain in full force and effect.
e. SmartCooks reserves the right at all times to disclose any information as SmartCooks deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in SmartCooks’ sole discretion.
f. You agree that SmartCooks may provide notice to you via email, regular mail, or posting notices or links to notices on our website or through the Services.
g. A printed version of these Terms and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.