Terms & Conditions

HotPlate LLC

Terms and Conditions

Last updated April 27, 2017

 

1.      Introduction and Acceptance of Terms

Thank you for visiting www.hotplateapp.com (the “Website”) and/or the Company’s mobile application (the “Application”). HotPlate LLC, a Texas limited liability company (“us,” “we,” or “Company”) owns and operates this Website, the Application, and related mobile website (collectively, the “Services”).  Your use of the Services is subject to the terms and conditions contained herein (as modified from time to time as provided below), our Privacy Policy, and, for certain services, any additional posted terms and conditions that apply to such services (collectively, the “Terms & Conditions” or “Agreement”).

By checking any acceptance boxes, clicking any acceptance buttons, submitting any text or content or simply by making any use of the Services, you (a) accept the Terms & Conditions and agree to be bound by each of its terms, and (b) represent and warrant to Company that (i) you are at least thirteen (13) years of age and have the authority to enter into the Terms & Conditions (either on your own behalf or by having a parent or legal guardian agree to the terms set forth herein on your behalf), (ii) the Terms & Conditions are binding and enforceable against you, (iii) to the extent an individual is accepting the Terms & Conditions on behalf of an entity, such individual has the right and authority to agree to all of the terms set forth herein on behalf of such entity, and (iv) you have read and understand Company’s Privacy Policy , the terms of which are posted at the Website and within the Application and incorporated herein by reference (the “Privacy Policy”), and agree to abide by the Privacy Policy. 

By accessing or using the Services, you agree to the terms of the Terms & Conditions.  If you do not agree to the Terms & Conditions, please exit this page and do not access or use the Services. 

 

2.     Purpose

The purpose of this Agreement is to set forth the terms and conditions under which, among other things, Company will license to you use of certain of Company’s technology, software, and/or services such that (i) you may search and view restaurant lists and information, restaurant ratings and reviews, and menu item ratings and reviews, (ii) you may rate and review restaurants and individual menu items, (iii) you may share User Contributions (as defined herein), and (iv) you may track your reviews and history (collectively, the “Purpose”).

Company does not directly provide any products or services other than making the Services available.  Company does not endorse or recommend the products or services of any particular company, restaurant, or individual.  Company is not responsible for any User Contribution.  Company shall not be required to review or monitor any User Contributions entered into or through the Services or otherwise posted by you, and you shall be solely responsible for the veracity and accuracy of all such data, content and information.  Company is not your agent.  Company shall not be liable in any way for the condition of any product, the performance of any service or any other action taken by any third party.  You agree that Company shall not be liable for any damages or costs of any type arising out of or in any way connected with any relationship initiated or any information learned through any of the Company’s services.  You are solely responsible for independently verifying the background, reputation, mission statement, and credit-worthiness of those parties with whom you enter into, or with whom you prospectively will enter into, a transaction or engagement.

Further to your release above, in the event of any controversy or dispute regarding any transaction or engagement conducted through or in connection with use of the Services (a “Dispute”), you hereby release Company, its affiliates and subsidiaries, and their respective directors, managers, officers, employees, agents, equity holders, successors and assigns (the “Released Parties”), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys’ fees, which you may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute.  If you are a California resident, you hereby waive your rights under Section 1542 of the California Civil Code, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

Company expressly reserves the right to discontinue, suspend, or terminate the offering of one or all of its services at any time.

 

3.     Changes to Terms & Conditions

Occasionally, we may revise the Terms & Conditions.  If we make any changes, we will use commercially reasonable efforts to notify you by means of a notice posted within the Services prior to the change becoming effective.  However, regardless of whether or not any such notice has been provided, your continued use of the Services after any such change to the Terms & Conditions shall constitute your acceptance of the terms of the revised Terms & Conditions. 

 

4.     Age Restriction

The Services are only available for individuals aged thirteen (13) years or older. 

 

5.     Trademarks

The trademarks, service marks, brand identities, characters, trade names, graphic designs, copyrights and other properties appearing within the Services (the “Marks”) are protected intellectual properties and are either owned by us or are being used by us with permission.  You may not use the Marks without our prior written permission. 

 

6.      Ownership of Services and Content

The Services, their content, features, and functionality, including, without limitation, all text, images, displays, video, audio, software, and the design, selection and arrangement thereof, are owned by us, our licensors, or other providers of such materials and are protected by copyright, trademark, and other intellectual property rights and laws.  You may use the Services for your personal, non-commercial use only.  You may not copy, reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Services.

Except as expressly provided above, we do not grant you any right, title, or interest in or to any of our or our licensors’ Marks or other proprietary rights.  We reserve all rights not expressly granted in the Terms & Conditions.

 

7.     Reliance on Information Posted

The information presented on the Services is made available solely for general information purposes.  We do not warrant the accuracy or completeness of any content and no content is intended to serve as advice.  Any reliance upon the material on the Services shall be at your own risk. 

 

8.     User Contributions

The Services may contain forums or features that allow users to: submit reviews, ratings, and comments; send e-mails and other such communications; submit comments, questions, ideas, and other information for publication and distribution; and/or post, submit, publish, display, or transmit content to other users or persons on or through the Services.  We refer to photographs and all content submitted by users as “User Contributions.”

A.  General.  Any User Contribution you post to the Services will be considered non-confidential and non-proprietary.  By providing a User Contribution, you: (i) grant us and our affiliates and service providers, and each of our and their respective licensees, successors and assigns the right to use, modify, copy, reproduce, publish, distribute, publically perform or display, adapt, translate, create derivative works, archive, store, upload, share, post, sublicense, or otherwise make available, any such User Contribution in any form and through any media of any kind now known or later developed, for any purpose; and (ii) irrevocably waive and assign to us any and all moral rights you may have in or with respect to any and all User Contributions you post to the Services.  Without limiting the foregoing, we shall be entitled to use any User Contribution for any commercial or other purpose whatsoever, without compensation or attribution, and we shall not be liable for future use of the User Contribution or something substantially similar to the User Contribution in our advertising, products or the like.

B.  Responsibilities with respect to User ContributionsBy submitting a User Contribution, you represent and warrant that such User Contribution does and will comply with these Terms & Conditions.  You are solely responsible for any User Contribution you submit or contribute, and you have full responsibility for such content, including its legality, reliability or accuracy.  We assume no responsibility for monitoring User Contributions and have no obligation to review User Contributions.  In addition, we do not guaranty the accuracy, integrity, or quality of any User Contribution.  All statements and/or opinions expressed in such content are solely the opinions and responsibilities of the person or entity proving such content.  You acknowledge that once a message, content or any User Contribution is submitted or posted through the Services, you may not be able to withdraw or delete it.  

C.  Content StandardsWithout limiting the generality of any other provisions of these Terms & Conditions, you may not post, upload, or transmit any User Contribution that:

·       is offensive, threatening, illegal, harmful, tortuous, abusive, defamatory, obscene, vulgar, hateful, that infringes any third party right, or is otherwise unlawful;

·       promotes illegal activities or conduct that is offensive, threatening, harmful, tortuous, abusive, defamatory, obscene, vulgar, hateful, or is otherwise unlawful;

·       is false, misleading, or defamatory;

·       is protected by copyright, trade secret, or subject to any other third party intellectual property rights or privacy rights unless you are the owner of such rights or you have the express permission from the rightful owner of such rights to upload, post, or submit such content and to grant us all the rights granted herein;

·       provides personal data such as telephone numbers, home or e-mail addresses, full names or last names without the explicit permission of the subject of such personal data or, if the subject is under thirteen (13) years old, without the explicit permission of the parent or guardian of such person;

·       contains photos of any person without the explicit permission of such person, or, if the person is under thirteen (13) years old, without the explicit permission of the parent or guardian of such person;

·       involves the transmission of unsolicited mass mail, spam, junk mail, or otherwise interferes with other users’ enjoyment of the Services;

·       falsely states or implies that such content is sponsored or endorsed by us or our affiliates;

·       contains restricted or password-only access pages or hidden pages or images;

·       involves commercial activities or sales unless otherwise agreed by our prior written consent; or

·       involves sending or otherwise making available any material that contains viruses, Trojan horses, worms, time bombs, or any other similar software that may damage the operation of our or any third party web provider’s servers, computers, or networks.

 

9.     Use Restrictions

You may use the Services only for lawful purposes and in accordance with the Terms & Conditions.  Without limiting the generality of any other provisions of the Terms & Conditions, you may not:

·       Use the Services in any way that violates applicable federal, state, local or international law or regulation;

·       Impersonate or attempt to impersonate us, one or our employees, another user or any other person or entity;

·       use any “deep-link,” “page-scrape,” “robot,” “spider,” or other automatic device, program, algorithm, or methodology, or any manual process to access, acquire, copy, or monitor any portion of the Services or any content or obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Services; 

·       attempt to gain unauthorized access to any portion of the Services or any content, or any systems or networks connected to the Services, by hacking, password “mining,” or any other illegitimate means;

·       probe, scan, or test the vulnerability of the Services or any content, or any system or network connected to the Services;

·       reverse look-up or trace any information of any other Services user or otherwise use the Services for the purposes of obtaining information of any other Services user;

·       use any device, software, or process to interfere with, or attempt to interfere with, the proper working of the Services or any content, or any systems or networks connected to the Services, or with any other person’s use of the Services;

·       remove any copyright, trademark, or other proprietary rights notice contained in or on the Services; or

·       use the Services or any content for any purpose that is unlawful or prohibited by these Terms & Conditions. 

 

10.  Reviews, Ratings, Comments, and Communications

Your User Contributions should be objective and impartial.  You may not submit reviews, ratings, or comments of or relating to your own restaurant, or any restaurant of your employer, relative, friend, or a competitor.  You may not impersonate any person or entity, use a false e-mail address, or otherwise mislead as to the origin of any User Contribution.  You may not write a fake or defamatory review, trade reviews with other companies, restaurants, or individuals, or compensate someone or be compensated to write, alter, or remove a review.

If you submit any such User Contributions, you grant Company a nonexclusive, perpetual, irrevocable, royalty-free, and fully licensable and sublicensable right to use, modify, adapt, translate, reproduce, publish, create derivative works from, display, distribute, and otherwise utilize such User Contributions in any form and through any media of any kind now known or later developed, for any purpose.  Company assumes no liability and takes no responsibility for any User Contribution submitted by you, any other user, or any third party, including without limitation in connection with any violations of the foregoing restrictions by any user.

 

11.  Registration and Account Security

We may, from time to time, allow users to register to access certain features of the Services.  In such event, you may be asked to provide certain registration details.  If you register, you agree to provide us with accurate and complete information, and to inform us immediately of any changes to such information.  You may not select or use a false name or an e-mail address owned or controlled by another person with the intent to impersonate that person.  We reserve the right to refuse registration of, or disable a user name or password, for any reason in our sole discretion.  If you choose or are provided with, a user name and password, you must treat such information as confidential.  You are fully responsible for all activities that occur under your user name and password, whether or not you authorize such activities.  You shall immediately notify us of any unauthorized use of your account.

 

12.  Fees

Company does not currently charge its users to access and use the Services, however Company (i) may charge fees to its merchant and/or business customers pursuant to separate agreements or arrangements with such parties, and (ii) may, at any point and in its discretion, elect to begin charging fees to end users for use of various portions of the Services and/or for different levels of subscription or account.

 

13.  Changes to Services

We reserve the right to change or discontinue any aspect or feature of our services or the Services, including, but not limited to, content, hours of availability, transmission speed, and requirements for access or use. 

 

14.  Enforcement and Termination 

We have the right to:

·       Edit, remove, or refuse to post any User Contribution for any or no reason in our sole discretion.   

·       Terminate your account or suspend or prohibit your access to the Services for any or no reason in our sole discretion.

·       Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.

·       Disclose your identity or other information about you to any third party who claims that any User Contribution posted by you violates their intellectual property or other rights.

Notwithstanding the foregoing, Company shall not be required to review or monitor any User Contributions entered into or through the Services or otherwise posted by you, and you shall be solely responsible for the veracity and accuracy of all such data, content and information.  Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on the Services. 

 

15.  Links to Other Websites

The Services may contain links to third-party websites.  We are not responsible for the content, accuracy or function of such websites.  The inclusion of any link to other websites does not imply endorsement by us.  Your use of third-party websites is at your own risk.

 

16.  Linking to Our Services

You may link to the Services, provided that (i) you do so in a way that is legal, fair, and does not damage our reputation; and (ii) the website from which you are linking complies in all respects with the Content Standards found in Section 8, above.  You may not establish a link in a way that suggests any association, approval or endorsement on our part.  We reserve the right to withdraw linking permission and disable any links at any time.

 

17.  Disclaimers

A.  No Warranties.  Except as explicitly set forth herein, neither Company, its affiliates, or any of any such party’s equity holders, directors, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Services will be error-free, (c) as to a minimum level of uptime for the Services, or (d) as to the results that may be obtained by you by entering into the Terms & Conditions and/or using the Services.  You agree and acknowledge that the Services are licensed and/or provided hereunder on an “as is” basis.  In addition, you hereby agree and acknowledge that: (i) Company shall not be responsible for any actions taken by any other party using the Services or reviewing any User Contribution; (ii) Company does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) Company is not responsible for any other party’s compliance with applicable laws, rules, or regulations; (iv) Company’s services are administrative in nature and Company is not responsible for verifying the accuracy or veracity of any User Contribution; (v) Company shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other User Contribution, including any User Contribution which may violate applicable law and/or a third party’s intellectual property rights; (vi) Company shall not be liable for any lost business or other damages arising out of any negative, untruthful, inaccurate, critical or inappropriate reviews or comments, including in respect of any restaurant, food or dish; and (vii) the Services may not function properly or as intended at times. 

B.  Unavailability of Services.  You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet and the Services.  While it is Company’s objective to make the Services accessible at all times, the Services may be unavailable from time to time for any reason including, without limitation, routine maintenance.  In addition, various portions of the Services may operate slowly from time to time.  You understand and acknowledge that due to circumstances both within and outside of the control of Company, access to the Services may be interrupted, suspended or terminated from time to time.  In particular, and not in limitation of the foregoing, Company shall not be liable in any way for any delay in responding to an inquiry or question forwarded by you or the effects any delay or unavailability may have on you.  YOU AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICES AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE SERVICES.

 

18.  Limitation of Liability

COMPANY SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SERVICES, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.  IN ANY EVENT, COMPANY'S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.

 

19.  Force Majeure

Company shall not be liable to you for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.

 

20.  Indemnification

You agree to defend, indemnify, and hold us and our officers, shareholders, directors, employees and agents harmless from and against any demands, loss, liability, claims, or expenses (including reasonable attorneys’ fees), made against us by any third party due to, arising out of, or related to (i) your access to the Services, (ii) your use of the Services, (iii) any User Contribution posted, uploaded or transmitted by you or any third party using your account or user name, (iv) your use or distribution of any User Contribution, (v) your violation of these Terms & Conditions, (vi) any use of your account or user name by you or any third party, or (vii) the infringement or other violation by you, or any third party using your account or user name, of any intellectual property or other right of any person.   

 

21.  Entire Agreement; Successors and Assigns

The Terms & Conditions represent the entire agreement between you and us with respect to the subject matter addressed herein and supersede all prior to contemporaneous agreements or understandings, written or oral.  The Terms & Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and lawful assigns.  

 

22.  Waiver and Severability

Any failure by us to enforce or exercise any provision of these Terms & Conditions shall not constitute a waiver of that right or provision.  Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches.  If any portion of these terms is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law to the greatest extent possible and the remainder of the provisions shall remain in full force and effect.

 

23.  Governing Law, International Use

We operate the Services from the Company’s office in Plano, Texas.  These Terms & Conditions will be governed by and construed in accordance with the internal laws of the State of Texas, without regard to its conflicts of law provisions.  You agree to the personal jurisdiction by and venue in the state and federal courts in Cook County, Illinois, and waive any objection to such jurisdiction or venue.  

Although the Services may be accessible worldwide, we make no representation that materials on the Services are appropriate or available for use in locations outside the United States, and accessing the Services from territories where its use is illegal is prohibited. 

 

24.  Apple-Enabled Software Applications

Company offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to software or mobile applications that are made available for your use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:

  • Company and you acknowledge that this Agreement is concluded between Company and you only, and not with Apple, and that as between Company and Apple, Company, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
  • You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
  • Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iPhone OS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
  • Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
  • Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Company’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
  • Company and you acknowledge that Company, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  • In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Company and Apple, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
  • You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  • If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Company by e-mail to following address: thehotplateapp@gmail.com.
  • Company and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Section 25 with respect to the Apple-Enable Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple-Enable Software as a third party beneficiary thereof.

 

25.  Google-Enabled Software Applications 

The following applies to any mobile software, including without limitation the Application, you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Company only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google's then-current Google Play Store Terms of Application; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Company, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or this Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Company’s Google-Sourced Software.

   

26.  Social Media

You may enable or log into the Services via various online third party services, such as social media and social networking services such as, by way of example, Facebook (“Social Networking Services”).  By logging in or directly integrating these Social Networking Services into the Services, we make your online experiences richer and more personalized.  To take advantage of these features and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers.  As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy.  For more information about the implications of activating these Social Networking Services and Company’s use, storage and disclosure of information related to you and your use of such services within Company, please see our Privacy Policy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Company shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within Company’s services.

In addition, Company is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services.  As such, Company is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services.  Company enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.