TERMS OF SERVICE
Battledish, Inc. ("Battledish") welcomes you to its online web site http://www.Dishcrawl.com (the “Website”). Battledish is an Internet-based, online community providing users with food related services and information (collectively, the "Service") and an opportunity to attend Dishcrawl Events (the “Dishcrawl Event”).
1. Service Terms and Limitations
1.1 License; Proprietary Rights. The Service is proprietary to Battledish and is protected by intellectual property laws and international intellectual property treaties. Your access to the Service is licensed and not sold. Subject to the terms of this Agreement and upon your registration for a Battledish Account, Battledish hereby grants you a revocable, non-exclusive, non-transferable account enabling you to access and use the Services and the Website. All Dishcrawl content that is made available to view and/or download in connection with the Services is owned by and is the copyrighted work of Battledish and/or its suppliers and is licensed, not sold.
Except for the limited licenses expressly granted herein, Battledish expressly reserves all right, title and interest in and to the Services, the content of the Website, and all processing and other software and technology used by Battledish in the provision of the Services (collectively, the "Battledish Property"), including, without limitation, any derivatives, improvements, enhancements or extensions of the Battledish Property conceived, reduced to practice or otherwise developed on or on behalf of Battledish, all of which are valuable assets of Battledish, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto. All content on the Website, including text, graphics, logos, icons, images, and video clips, is the exclusive property of Battledish or its content suppliers and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all content on the Website is the exclusive property of Battledish and is also protected by U.S. and international copyright laws. The content on the Website may be used as a resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the content on the Website is strictly prohibited. Furthermore, you will not, nor will you allow or direct any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, circulate or use any content on the Website without the express prior written consent of Battledish. Any unauthorized or prohibited use of the contents on the Website may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, and local laws.
1.2 User's Agreement; Restrictions. You expressly agree: (i) that Battledish has the right to suspend and/or terminate your account and refuse any and all current or further use of the Services if Battledish determines, in its sole discretion, that any information you provide is untrue, inaccurate, not current and/or incomplete; (ii) to protect your username and password at all times; (iii) to notify Battledish immediately of any unauthorized use of your account or any other need to deactivate your username and/or password due to security concerns; and (iv) that Battledish shall not be responsible for unauthorized access to or alteration of your data. We are not liable for any harm caused or related to the theft or misappropriation of your username and/or password, disclosure or your username and/or password, or your authorization of anyone else to use your username and/or password. From time to time, Battledish may find it necessary to access your account. In such event, Battledish will, if possible, provide you notice of its intent to use your username and password to do so. Regardless of whether such notice is provided, you acknowledge and consent to such access. Furthermore, recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.
You shall not: (i) use, or allow the use of, the Services, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by Battledish or inconsistent with Battledish’s standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, or compromise any aspect of the Battledish Property, or attempt to access data of any other customer of Battledish; (iv) use, reproduce, modify or create derivative works of the Battledish Property; (v) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by Battledish; (vi) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services; (vii) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Services; or (viii) transfer, lease, lend, sublicense, use for timesharing or service bureau purposes, resell or otherwise distribute or allow third party access to all or any portion of the Battledish Property, including, but not limited to, sharing your access username and/or password.
1.3 User Representations. You represent and warrant to Battledish that: (i) you are over the age of eighteen (18) and have the power and authority to enter into and perform your obligations under this Agreement; (ii) all information provided by you to Battledish is truthful, accurate and complete; (iii) you shall comply with all terms and conditions of this Agreement; and (iv) you have provided and will provide accurate and complete registration information, including, without limitation, your legal name, address and telephone number.
1.4 Accessibility; Equipment. You acknowledge and agree that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Battledish may undertake from time to time; or (iii) causes beyond the control of Battledish or which are not reasonably foreseeable by Battledish.
You shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for your use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
2. Dishcrawl Event Participation.
2.1 License and Ownership of Event Materials. From time to time, Battledish may organize Dishcrawl Events that you may participate. Battledish may record your participation at such Dishcrawl Event and request your comments and/or testimonial regarding such event. You consent and agree that in your participation of a Dishcrawl Event, Battledish may use your name, likeness and biographical material, and any comments you provide to Battledish during such Dishcrawl Event (collectively, the “Dishcrawl Event Submitted Content”) for all media, including but not limited to, print, video, electronic, internet, and digital formats whether now known or hereafter created (collectively, the “Event Materials”), solely in connection with the promotion, advertising and marketing and/or distribution of Battledish, the Services and the Dishcrawl Events. You acknowledge and agree that any and all Event Materials developed in connection with the any Dishcrawl Event shall be the sole and exclusive property of Battledish and that you will not receive a fee for Battledish’s use of your Dishcrawl Event Submitted Content.
2.2 Release and Waiver. You hereby release Battledish, its affiliates, partners, directors, officers, employees, agents, representatives, successors, and assigns (collectively, the “Affiliates”) from any and all liability, from injury, loss or damage of any kind arising out of or resulting from your endorsement of a Dishcrawl Event and use of your Dishcrawl Event Submitted Content. If requested, you agree to execute a release and waiver provided by Battledish in connection with your participation in any Dishcrawl Event. Furthermore, you hereby release Battledish and its Affiliates from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced, or any unintentional misspellings or inaccuracies.
If you do not agree to this provision, please do not attend any Dishcrawl Events.
3. On-Line Communications
3.1 Submitted Content. You are solely responsible for the information, and other content that you upload, publish or display (hereinafter, "post") on the Website (collectively, the “Submitted Content”). You warrant, represent and agree that you will not contribute any Submitted Content or otherwise use the Website in a manner that (i) infringes the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) you should know is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) adversely affects or reflects negatively on Battledish’ goodwill, name or reputation or causes duress, distress or discomfort to Battledish or anyone else, or discourages any person, firm or enterprise from using all or any portion, feature, or function of the Website, or from advertising, liking or becoming a supplier to use in connection with the Website; (v) send or result in the transmission or junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”; (vi) transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horse, spyware, or other potentially harmful programs or other material or information; (vii) falsely report to an employee or agent of Battledish; (viii) circumvent, disable or otherwise interfere with security-related features of the Dishcrawl website or its features that prevent or restrict use or copying of any content; (ix) intercept or attempt to intercept email or other private communications not intended for you; and/or (x) causes the Website to be used for commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages. While it is not the intent of Battledish to discourage you from reporting problems about the Services, nonetheless, Battledish reserves the right to take such action as it deems appropriate and/or to remove any content from the Website at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content or if Battledish is concerned that you may have breached the immediately preceding sentence), or for any reason at all.
It is not the intent of Battledish to discourage Users from taking controversial positions or expressing vigorously what may be unpopular views in Battledish, nonetheless, Battledish reserves the right to take such action as it deems appropriate in cases where Battledish is used to disseminate statements which are deeply and widely offensive and/or harmful. Each time you upload a file on BATTLEDISH, you represent and warrant that you own or otherwise control the rights or have the necessary consents to do so, and you grant every other User the right to download and use such file. Your failure to observe any of the foregoing limitations or obligations may result in civil or criminal liability.
3.2 License Grant for Website Participation. Your participation in on-line communications occurs in real time and is not edited, censored, or otherwise controlled by Battledish. Battledish cannot and does not screen content provided by you or other users of the Website to Battledish or through the Service. Notwithstanding the foregoing, Battledish reserves the right to monitor content on the Website and to remove content, which Battledish, in its sole discretion, determines to be harmful, offensive, or otherwise in violation of this Agreement or Battledish's operating policies for users of Battledish ("Users"). Except as described herein, any Submitted Content which you post (on any public area of Battledish (e.g., comments, forums, etc.) is considered to be non-confidential. By placing any information or other material on such publicly accessible locations on Battledish (including but not limited to posting messages, uploading files, inputting data or engaging in any other form of communication), you automatically grant (or warrant that the owner of such content has expressly granted) to Battledish a perpetual, royalty- free, non-exclusive, irrevocable, unrestricted, worldwide license to use, copy, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, publish and/or broadcast, publicly perform or display any materials or other information (including without limitation, ideas contained therein for new or improved products or services) you submit to public areas of Battledish (including but not limited to chat rooms, forums and bulletin boards) alone or as part of other works in any form, media, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses.
4. Other Sites
You are encouraged to use discretion while browsing the Internet using links initiated at Battledish. Battledish links may lead unintentionally to sites containing information that some people may find inappropriate or offensive. It may also lead to sites which contain inaccurate information, false or misleading advertising, or information which violates copyright, libel or defamation laws. Battledish make no representations concerning any effort to review all of the content of sites listed in its Website.
The entire contents of the Website are copyrighted as a collective work under the laws of United States and other copyright laws. Battledish holds the copyright in the collective work. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the material from the different areas of Battledish solely for your own non-commercial use, unless otherwise permitted. Any redistribution retransmission or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner. You agree not to change or delete any proprietary notices from materials downloaded from Battledish. You may not use any Battledish logo or any other proprietary graphic or trademark without Battledish's express written permission.
7.1 Disclaimer of Warranties. Battledish does not represent or warrant that (a) the Services will be error-free or accessible at all times, (b) defects will be corrected, (c) the Services or the server that makes it available, are free of viruses or other harmful component, or (d) the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable. Battledish does not guarantee, and shall have no liability for, any Services down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance, or (iv) relating to events beyond Battledish’s control such as, but not limited to, strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Battledish or your servers are located or co-located.
CONTENT ON OR AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" WITHOUT WARRANTY, EXPRESS OR IMPLIED. BATTLEDISH HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE WITH RESPECT TO THE SERVICE OR THE CONTENT. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THIS AGREEMENT. BATTLEDISH MAKES NO WARRANTY AS TO THE RELIABILITY, ACCURACY, TIMELINESS, USEFULNESS, ADEQUACY, COMPLETENESS OR SUITABILITY OF THE SERVICE. BATTLEDISH CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. BATTLEDISH CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THIS ONLINE SITE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. BATTLEDISH DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICE ACCESSED THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE WEBSITE WILL BE CORRECTED. USERS OF THE WEBSITE ARE RESPONSIBLE FOR (1) IMPLEMENTING AND MAINTAINING ADEQUATE PROCEDURES AND CHECKPOINTS TO SATISFY THEIR PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT AND (2) MAINTAINING A MEANS EXTERNAL TO BATTLEDISH FOR THE RECONSTRUCTION OF ANY LOST DATA. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS BATTLEDISH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT OR ANY ACTIVITY RELATED TO YOUR ACCOUNT (INCLUDING INFRINGEMENT OF THIRD PARTIES' WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT) BY YOU OR ANY OTHER PERSON ACCESSING BATTLEDISH USING YOUR SERVICE ACCOUNT.
9. Waiver, Release and Limitation of Liability
YOU AGREE THAT NEITHER BATTLEDISH, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE WEBSITE, THE SERVICES, OR ANY BATTLEDISH PROPERTY. YOU SPECIFICALLY ACKNOWLEDGE THAT BATTLEDISH SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST BATTLEDISH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF BATTLEDISH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE WEBSITE OR THE SERVICES.
IN RELEASING CLAIMS UNKNOWN TO THE UNDERSIGNED AT PRESENT, THE UNDERSIGNED WAIVES ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND ANY LAW OR LEGAL PRINCIPLE OF SIMILAR EFFECT IN ANY JURISDICTION: “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.”
NOTWITHSTANDING THE FOREGOING PARAGRAPH, THE TOTAL LIABILITY OF BATTLEDISH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS, IF ANY, FOR LOSSES OR DAMAGES SHALL NOT EXCEED THE FEES PAID BY THE USER FOR THE PARTICULAR INFORMATION OR SERVICE PROVIDED. IN NO EVENT SHALL BATTLEDISH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES OTHER THAN THE AMOUNT REFERRED TO ABOVE. ALL OTHER DAMAGES, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE ARISING FROM ANY USE OF THE INFORMATION OR OTHER PARTS OF BATTLEDISH ARE HEREBY EXCLUDED EVEN IF BATTLEDISH ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Third Party Rights
The provisions of paragraphs 2.2 (Release and Waiver), 7 (Disclaimer), 8 (Indemnification) and 9 (Waiver, Release and Limitation of Liability) are for the benefit of Battledish and its officers, directors, employees, agents, licensors, suppliers, and information providers. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
11. Term; Termination
Either you or Battledish may terminate this Agreement at any time and for any reason. In addition, this Agreement will terminate immediately, without notice, if you fail to comply with the terms of this Agreement. Upon any termination of this agreement, Battledish will cease providing the Service.
The provisions of paragraphs 1.2 (User's Agreement; Restrictions), 1.3 (User Representations), 2 (Dishcrawl Event Participation), 3.2 (License Grant for Website Participation), 6 (Copyright), 7 (Disclaimer), 8 (Indemnification), 9 (Waiver, Release and Limitation of Liability), 10 (Third Party Rights), 14 (Miscellaneous), and 15 (Notice) shall survive any termination of this Agreement.
12. Copyright or Intellectual Property Infringement Notification
Battledish respects the intellectual property rights of others. You can notify Battledish of possible copyright infringement, and Battledish will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide the following:
(i) A physical or an electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
(ii) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(iii) A description of where the material that you claim is infringing is located on BATTLEDISH reasonably sufficient to permit Battledish to locate the material;
(iv) Your contact information, including your address, telephone number, and email;
(v) A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement by you that the above information in your notice is accurate and that you, made under penalty of perjury, are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Contact the agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act (“DMCA”). Claims can be sent to tracy@Dishcrawl.com or to Battledish, Inc. at PO Box 2254, Cupertino, CA 95015.
13. Export Controls; U.S. Government Restricted Rights
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the Battledish Property in violation of any such restrictions, laws or regulations. By downloading or using the Material, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
This Agreement shall be governed by and construed in accordance with the laws of the State of California. You agree that any legal action or proceeding between Battledish and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in Santa Clara County, California, United States. Any cause of action or claim you may have with respect to Battledish must be commenced within one (1) year after the claim or cause of action arises. Battledish failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any user, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 9, 10, and 11 is intended to benefit Battledish and its officers, directors, employees, agents, licensors, suppliers, and Information Providers. Battledish may assign its rights and duties under this Agreement to any party at any time without notice to you.
Battledish may deliver notice to you under this Agreement by means of electronic mail, a general notice on the Website, or by written communication delivered by first class U.S. mail to your address on record in Battledish's account information. You may give notice to Battledish at any time via electronic mail to Battledish to the following address: hi@Dishcrawl.com ATTN: Member Service