TERMS OF SERVICE
Last Updated: December 1, 2021
Welcome to Eat Mise Inc. (“Mise”) and the Mise Terms of Service (“Terms”). These Terms are important and affect your legal rights, so please review them carefully. Please review in particular, Section 14 related to allergens, and Section 17 related to binding arbitration. These Terms provide that with limited exceptions covered by Section 17 all disputes between you and Mise arising out of or relating to these Terms or your use of the Mise website or products (“Disputes”) will be resolved by binding arbitration. For such Disputes, you waive your right to bring a class or representative action, or go to court under these Terms. Your rights will be determined by a neutral arbitrator and not a judge or jury, and your claims must be brought individually and not as a class or representative action. Please review Section 17 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to individually arbitrate any Disputes with Mise.
These Terms do not alter in any way the terms or conditions of any other agreement you may have with Mise in respect of any products, services or otherwise. If you are using the Platform on behalf of any person or entity, you represent and warrant that you are authorized to accept these Terms on such person or entity’s behalf and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
Mise reserves the right to change or modify these Terms at any time and in Mise’s sole discretion. If Mise makes changes to these Terms, Mise will provide notice of such changes, such as by sending an email notification, providing notice through the Platform or updating the “Last Updated” date at the beginning of the Terms. By continuing to access or use the Platform or order, receive or use the Meal Kits, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. Mise encourages you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Platform or order, receive or use the Meal Kits. If you do not agree to the revised Terms, you may not access or use the Platform or order, receive or use the Meal Kits.
The Platform connects consumers with restaurants (“Merchants”) and with independent contractor couriers (“Couriers”), to facilitate delivery services. Through the Platform, consumers may request that Meal Kits be delivered to them from a Merchant by Couriers who contract with Mise to access the Platform and receive delivery opportunities.
Mise is not a retail store, restaurant, food delivery platform, merchandise delivery platform or food preparation entity. Mise is not liable or responsible for Merchants’ compliance with applicable federal, state, or local laws, rules, regulations or standards pertaining to their businesses. In addition, Mise does not guarantee the quality of what Merchants sell and does not independently verify, and is not liable for, representations made by Merchants regarding their products on the Platform.
Mise is not the retailer of any products offered by Merchants, nor is it in the delivery business or a common carrier. Mise provides a technology platform facilitating the transmission of orders by consumers to Merchants for delivery by Couriers. Couriers are independent contractors and not employees, partners, agents, joint ventures, or franchisees of Mise. Couriers have entered into independent contractor agreements with Mise, which require them to comply with all applicable federal, state, and local laws, rules and regulations. Mise shall not be liable or responsible for any delivery services provided by Couriers, or any errors or misrepresentations made by any of them. You hereby acknowledge that Mise does not supervise, direct, control, or monitor a Courier’s provision of services and expressly disclaims any responsibility or liability for the services performed. Any interactions or disputes between you and a Courier are solely between you and that Courier. Mise and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier.
Mise is committed to ensuring that the Meal Kits ordered by a consumer are delivered in a manner consistent with the consumer’s expectation.
As provided in greater detail in these Terms, you agree and acknowledge these material terms:
- The Platform is licensed, not sold to you, and you may use the Platform only as set forth in these Terms;
- Your use of the Platform may be subject to separate third party terms of service and fees, including without limitation your mobile network operator’s (“Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- The Platform is provided “as is” without warranties of any kind, and Mise’s liability to you is limited; and
- Disputes arising under these Terms will be resolved by binding individual arbitration.
The Platform is not targeted toward or intended for use by anyone under the age of 18. By using the Platform, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Platform, or engaged in any activity that could result in suspension or removal from the Platform, (d) have not created or do not have more than one Mise account, unless expressly permitted by Mise, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
Mise continually tests new functionalities, services, options, initiatives, user interfaces, products and other features that Mise is considering developing, adding or incorporating into Mise’s Platform or Meal Kits (“Test Features”). Mise reserves the right, in Mise’s sole discretion, to include or exclude you, from these tests without notice and to discontinue or to modify any Test Feature at any time, for any or no reason, without prior notice and with no liability, to the fullest extent permitted by applicable law.
3. Registration, Account and Communication Preferences
To access and use certain areas or features of the Platform, you will need to register for a Mise account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Platform on your behalf, and (e) immediately notify Mise if you discover or otherwise suspect any security breaches related to the Platform or your account. You further understand and agree that Mise may take actions Mise deems reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your account.
By creating a Mise account, you also consent to receive electronic communications from Mise (e.g., via email or by posting notices to the Platform). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with Mise. You agree that any notices, agreements, disclosures or other communications that Mise send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from Mise by printing a paper copy or saving an electronic copy. Mise may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information Mise thinks will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
By providing your mobile phone number to Mise through the Platform or in connection with your order, receipt or use of the Meal Kits, you consent to receive calls or text messages at any such phone number sent by or on behalf of Mise, including autodialed calls and/or text messages, for marketing, promotional, operational or transactional purposes, such as updates on the delivery status of your order of any Meal Kits. You may opt out of marketing and promotional calls or messages by following the applicable unsubscribe instructions provided to you. Following such opt-out, you may continue to receive calls or messages for a short period of time while Mise processes your request. It is your responsibility to keep your account information, including your phone number, updated. Standard message and data rates applied by your mobile phone carrier may apply to the text messages Mise sends you. Please contact your mobile phone carrier for details.
4. Terms of Sale
4.1. General Payment Terms
You agree to pay for the total amount of your purchase (including any applicable taxes and other charges) (collectively, an “Order”). To make an Order from an account, you must provide valid payment information (e.g. credit card, debit card, and/or a Gift Card) through the Platform. By placing an Order through your account, you also agree and authorize (1) the payment method(s) you provide to be immediately charged for all fees and taxes applicable to your order; (2) Mise to automatically charge alternative payment methods associated with your account if a primary payment method is declined or no longer available; (3) Mise to share payment information and instructions required to complete the payment transactions between Mise, any payment processors, and their third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services); and (4) no additional notice or consent is required for the foregoing authorizations. You agree to immediately update your account in the event of any change in your payment information. Mise reserves the right at any time to change its billing methods.
4.2. Payment and Billing Information
By providing a credit card or other payment method that Mise accepts, you represent and warrant that you are authorized to use the designated payment method and that you authorize Mise (or a third-party payment processor) to charge your payment method for Order. If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any payment method problems before Mise proceeds with your Order. If you want to change or update your payment method information, you can do so at any time by logging into your account. If a payment is not successfully settled and you do not edit your payment method information or cancel your Meal Kit purchase, or account, as applicable, you remain responsible for any uncollected amounts.
You acknowledge that the amount billed may vary due to promotional offers, preferences you select, changes you make to your Meal Kit order or changes in applicable taxes or other charges, and you authorize Mise (or a third party-payment processor) to charge your payment method for the corresponding amount.
4.3. Pricing and Availability
All prices on the Platform are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. Mise reserves the right to adjust prices as Mise may determine in Mise’s sole discretion, at any time and without notice, including without limitation, as based on geographic or other criteria as Mise may establish from time to time; provided, however, that if Mise changes the amounts or other charges associated with Meal Kits, Mise will provide advance notice of such changes in accordance with Section 3. Mise will not, however, be able to notify you of changes in any applicable taxes. The delivery of Meal Kits, to you after delivery of such notice will confirm your acceptance of such changes, unless you cancel your order) in accordance with the cancellation policy set forth in Section 4.5.2.
All Mise Meal Kits are subject to availability, and Mise reserves the right to impose quantity limits on any Order, to reject all or part of an Order or to discontinue offering certain Meal Kits without prior notice. Mise strives to provide you with high-quality Meal Kits, and given the perishable nature of Meal Kits and market conditions beyond Mise’s control, Mise may be required to make substitutions from time to time.
Mise will collect applicable sales, use and other tax (“Tax”) on Meal Kits delivered to jurisdictions for which Mise determines there is a duty to collect Tax applicable to your Order. If an item is subject to Tax, you agree that the amount of Tax shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in applicable Tax rates.
You agree to pay any delivery and handling charges shown at the time you make a purchase. Mise reserves the right to increase, decrease, add or eliminate delivery and handling charges from time to time, but Mise will provide notice of the charges applicable to you before you make your purchase. When you purchase a Meal Kit from the Platform, any delivery times shown are estimates only. Actual delivery times may vary.
4.5.1. Food Safety
You are responsible for inspecting all Meal Kits for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Meal Kits you receive. We recommend that you use a thermometer to ensure that the internal temperature of any meat, poultry or seafood Product is 40° F or below. In the unlikely event that such temperature is above 40° F, or you have any other reason to believe that any other Meal Kit in your delivery or purchase is not suitable for consumption, contact Mise at firstname.lastname@example.org and discard the item. To maintain the quality and integrity of the Meal Kits, Mise recommends that you immediately refrigerate all perishable Meal Kits upon delivery or purchase and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found here. Mise recommends that you follow the USDA’s instructions on safe food handling, which can be found here. Mise also recommends that you use a food thermometer to ensure that all meat, poultry, seafood and other applicable items are cooked to the USDA’s recommended internal temperatures, which can be found here. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the USDA’s recommendations on food consumption for at-risk groups, which can be found here.
If you are not present when your Meal Kit arrives, the Courier will generally leave the package for you at your door, unless other delivery instructions have been communicated to you. Meal Kits may be packaged with insulated liners and gel packs and will typically remain cold and fresh for several hours, but depending on the season and temperature in your geographic area at the time of delivery, advance planning by you should be made for immediate and proper storage of your Meal Kits prior to consumption. Any individual at the delivery address who accepts a delivery from Mise is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
In the case of inclement weather or other events beyond Mise’s control that interfere with Mise’s ability to deliver your Meal Kit, Mise will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. If timely delivery of your Meal Kit is not feasible, Mise may cancel your Order for the period so affected and issue you a Credit (as defined below) or refund of the purchase price for that Order.
4.5.2. Meal Kit Order Cancellation
If you wish to change or cancel your Order, you must do so before the day and time listed above for your respective delivery date. For example, if you have a scheduled delivery date on Tuesday, you have until Monday at 11:59 PM EST to cancel your Order. If you do so after the time listed for your delivery day, you will be charged and receive your Order.
4.6. No Resale
You are not permitted to resell or otherwise use the Meal Kits for commercial purposes.
4.7. Replacements, Refunds, and Credits
If you are dissatisfied with a Meal Kit ordered on the Platform for any reason, please contact Mise at email@example.com within seven (7) days of the date you received the Meal Kit. Depending on the circumstances, Mise may, in Mise’s sole discretion, replace the Meal Kit at Mise’s expense, provide you a full or partial refund of the purchase price for that Meal Kit, or provide you with Credits for that Meal Kit that will automatically be applied to future Meal Kit deliveries, as applicable. Notwithstanding the foregoing, Credits for certain types of Meal Kits may require additional action on your part (e.g., application of a coupon code) in order to be applied to future purchases, which shall be communicated to you at the time of issuance.
Mise may require the return or photographic documentation of any Meal Kit that you are dissatisfied with before Mise provides you a refund, replacement, or Credit.
In certain circumstances, such as if Mise wants to thank you for your patience with a delayed delivery or to address another customer service issue, Mise may provide you customer experience credits of promotional value that will be automatically applied to your next eligible Order. Credits may only be redeemed for the type of Product for which they were issued (i.e., Credits for a meal or meal ingredient may only be applied to future deliveries under your Meal Subscription or a Meal Purchase, as applicable, In addition to the foregoing, Credits for certain types of Meal Purchases may only be applied to future deliveries of the specific type of Meal Purchase for which they were issued. Credits are promotional in nature, are not transferable, and are not redeemable for cash or other property.
Credits only remain available if you maintain a valid Mise account. That means that if you cancel your Mise account, any outstanding Credits associated with your cancelled Mise account will immediately expire. You may only redeem Credits after they are applied to your Mise account. If for some reason you believe that there is a discrepancy regarding your Credit balance, please contact firstname.lastname@example.org. All decisions regarding your Credit balance will be determined in Mise’s sole discretion and are final.
5. License to Access and Use Mise Platform and Content
Unless otherwise indicated in writing by Mise, the Platform and all content and other materials contained therein, including, without limitation, the Mise logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 9), other files and the selection and arrangement thereof (“Content”) are the proprietary property of Mise or Mise licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Platform and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Platform or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Platform or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Platform or Content, except as expressly permitted by us, and (f) use the Platform or Content other than for their intended purposes. Any use of the Platform or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by Mise, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Mise or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Platform and Content may include software components provided by Mise or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, Mise has adopted a policy of limiting access to the Platform by, or terminating the accounts of, users, in appropriate circumstances and in Mise’s sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Platform infringes any copyright that you own or control, you may file a notification of such infringement with Mise as set forth below:
Address: Eat Mise Inc., 600 5th Ave Floor 11, New York, NY 10020
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by Mise or the alleged infringer as the result of Mise relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Mise,” the Mise logo and any other Mise Meal Kit or service names, logos or slogans that may appear on the Site or Meal Kits are trademarks of Mise and may not be copied, imitated or used, in whole or in part, without Mise’s prior written permission. You may not use any metatags or other “hidden text” utilizing “Mise” or any other name, trademark or Meal Kit or service name of Mise without Mise’s prior written permission. In addition, the look and feel of the Site and Meal Kits, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Mise and may not be copied, imitated or used, in whole or in part, without Mise’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Site or Meal Kits are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Mise.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Platform for noncommercial purposes, provided that such link does not portray Mise or any Meal Kits in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Mise logo or other proprietary graphic of Mise to link to the Platform without Mise’s express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Mise, logo or other proprietary information, including the images found on the Platform or Meal Kits, the content of any text or the layout or design of any page, or form contained on a page, on the Platform without the express written consent of Mise.
Mise makes no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Platform or of websites linking to the Platform. Such sites are not under Mise’s control and Mise provides these links to you only as a convenience. The inclusion of any link does not imply Mise’s affiliation, endorsement or adoption of any site or any information contained therein. Except as otherwise provided herein, when you leave the Platform, you should be aware that Mise’s terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Platform.
9. Third Party Content
Mise may display content, advertisements and promotions from third parties through the Platform or in Meal Kit deliveries (“Third Party Content”). Mise does not control, endorse or adopt any Third Party Content, and Mise makes no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
10. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Platform. You agree that you will abide by these Terms and will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from such user and Mise;
- Use the Platform in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Platform or that could damage, disable, overburden or impair the functioning of the Platform in any manner;
- Reverse engineer any aspect of the Platform or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Platform;
- Attempt to circumvent any content-filtering techniques Mise employs or attempt to access any feature or area of the Platform that you are not authorized to access;
- Develop any third party applications that interact with User Content (as defined below) or the Platform without consent from Mise;
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by Mise to access the Platform, extract data or otherwise interfere with or modify the rendering of Platform pages or functionality; or
- Use the Platform for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
11. User Content
The Platform may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). If you decide to share your User Content with others through the Platform or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Platform.
By using the interactive features and areas of the Platform, you further agree not to create, post, share or store any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- User Content that impersonates, or misrepresents your affiliation with, any person or entity;
- User Content that references or depicts Mise or Mise products but fails to disclose a material connection to us, if you have one;
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
- User Content that contains any private or personal information of a third party without such third party’s consent;
- User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
- User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in Mise’s sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Platforms, or that may expose Mise or others to any harm or liability of any type.
Although Mise has no obligation to screen, edit or monitor User Content, Mise reserves the right, and has absolute discretion, to remove, screen or edit User Content posted or stored on the Platform at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Platform at your sole cost and expense.
12. Rights in User Content
If you submit content you own, you retain your ownership of your intellectual property rights. Mise does not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Platforms or to Mise’s pages or feeds on third party social media platforms (e.g., Mise’s Facebook page, Instagram page or Twitter feed), you hereby grant Mise a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at Mise’s sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Mise through the Platform or through Mise’s pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Mise to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Mise,the Platform or the Meal Kits (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Mise. Mise shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Mise, and Mise’s respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Mise Parties”), from and against all actual or alleged Mise Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (“Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Platform, Content or Meal Kits by you or any third party you authorize to access or use such Platform, Content or Meal Kits, (b) any User Content you create, post, share or store on or through the Platform or Mise pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify Mise of any third party Claims, cooperate with the Mise Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Mise Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Mise.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE MEAL KITS. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE MEAL KITS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT MISE DELIVERS MEAL KITS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
MISE ATTEMPTS TO DISPLAY THE MEAL KITS AND INFORMATION YOU VIEW ON THE SITE, INCLUDING PRICING, AS ACCURATELY AS POSSIBLE. HOWEVER, MISE DOES NOT GUARANTEE THE ACCURACY OF SUCH INFORMATION. IN THE EVENT OF AN ERROR ON THE SITE, IN AN ORDER CONFIRMATION, IN DELIVERING AN ORDER OR OTHERWISE, MISE RESERVES THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE MEAL KITS IN YOUR ORDER MAY NOT BE AVAILABLE ON YOUR DELIVERY DAY DUE TO A NUMBER OF FACTORS, INCLUDING, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF MEAL KITS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. IN THE EVENT THAT A MEAL KIT IS NOT AVAILABLE ON YOUR DELIVERY DAY, MISE MAY, IN MISE’S SOLE DISCRETION, CANCEL YOUR ORDER AND OFFER REFUNDS OR CREDITS THAT MAY BE USED FOR FUTURE MEAL KIT ORDERS. HE SITE MAY CONTAIN INFORMATION ABOUT MEAL KITS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A MEAL KIT ON THE SITE DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MISE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING ANY CONTENT RELATED TO MISE MEAL KITS PROVIDED BY OR DISPLAYED THROUGH A THIRD PARTY CHANNEL, INCLUDING, WITHOUT LIMITATION, REGARDING ITS ACCURACY OR COMPLETENESS.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MISE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITE, CONTENT AND MEAL KITS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITE OR MEAL KITS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
Mise reserves the right to change any and all Content and to modify, suspend or stop providing access to the Platform (or any features or functionality of the Platform) and the Meal Kits at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Mise.
16. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL MISE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF MISE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE PLATFORM OR BY MISE. MISE ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE PLATFORM. MISE ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL MISE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO MISE DURING THE THIRTY (30) DAY PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) $250 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.
YOU AND MISE AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE MATERIAL, BARGAINED-FOR BASES OF THESE TERMS, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THESE TERMS AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND MISE AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM.
17. Modifications to the Platforms
Mise reserves the right in Mise’s sole discretion to modify, suspend or discontinue, temporarily or permanently, the Platform (or any features or parts thereof) or the provision of the Meal Kits at any time.
18. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MISE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MISE.
18.1. Binding Arbitration and Class Action Waiver
You agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of these Terms or payments by or to Mise, or that in any way relate to your use of the Platform, the Meal Kits, and/or other content on the Platform or any other dispute with Mise, shall be submitted exclusively to binding arbitration, except that each party retains the right to bring an individual action in small claims court for disputes and actions within the scope of such court’s jurisdiction and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Arbitration means that an arbitrator and not a judge or jury will decide the claim. Rights to prehearing exchange of information and appeals may also be limited in arbitration. You acknowledge and agree that you and Mise are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Mise otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this class action waiver is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms. You further acknowledge that any claim arising under these Terms must be brought within one year of its accrual or it will be waived. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate, as well as all threshold arbitrability issues, including whether this Dispute Resolution provision is unconscionable and any defense to arbitration.
18.2. Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”). Except as modified by this “Dispute Resolution” provision, the AAA will administer the arbitration in accordance with either (A) the Commercial Arbitration Rules then in effect, or (B) the Consumer Arbitration Rules then in effect if the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1 (together, the “Applicable AAA Rules”).(The Applicable AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this entire “Dispute Resolution” provision.
18.3. Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Applicable AAA Rules. (The AAA provides applicable forms for Demands for Arbitration https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://www.adr.org/sites/default/files/AAA%20Affidavit%20for%20Waiver%20of%20Fees%20Notice%20California%20Consumers.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which you reside and will be selected in accordance with the Applicable AAA Rules. If the parties are unable to agree upon an arbitrator within fourteen (14) days of the AAA’s notice to the parties of its receipt of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
18.4. Arbitration Location and Procedure
Unless you and Mise otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Mise submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the Applicable AAA Rules. Subject to the Applicable AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
18.5. Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the Applicable AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages and/or other relief must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages or other relief for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide the relief warranted by the claimant’s individual claim. If the arbitrator determines that you are the prevailing party in the arbitration, and only if authorized under applicable law, the arbitrator may award reasonable attorneys’ fees and expenses. Mise will not seek, and hereby waives, all rights Mise may have under applicable law to recover attorneys’ fees and expenses if Mise prevails in arbitration unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the Applicable AAA Rules. However, if your claim for damages does not exceed $25,000, Mise will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Mise reserves the right to change this “Dispute Resolution” section, but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if Mise changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you agree that your continued use of the Platform after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing Mise written notice of such rejection by mail or hand delivery to: Mise, Attn: Dispute Resolutions, 540 W 49th St 308N New York, NY 10019, or by email from the email address associated with your account to: email@example.com, within 30 days of the date such change became effective, as indicated in the “Effective” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Mise in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms, as applicable).
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.1 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
19. Governing Law and Venue
These Terms, your access to and use of the Platform and your order, receipt and use of the Meal Kits shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of New York and the United States, respectively, sitting in the State of New York, County of New York, Borough of Manhattan.
Notwithstanding anything contained in these Terms, Mise reserves the right, without notice and in Mise’s sole discretion, to terminate your right to access or use the Platform and to order, receive and use the Meal Kits, at any time and for any or no reason, and you acknowledge and agree that Mise shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to Mise, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
All sections of these Terms will survive the expiration or termination of these Terms and the termination of your Mise account, except: Sections 2, 5 (second and third paragraphs), and 8 (first paragraph).
These Terms constitute the entire agreement between you and Mise relating to your access to and use of the Platform and your order, receipt and use of the Meal Kits. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Mise. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Mise’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.