Last Updated: May 22, 2012
THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH CHEFS (DEFINED BELOW) MAY CREATE LISTINGS (DEFINED BELOW) FOR SERVICES (DEFINED BELOW) AND CLIENTS (DEFINED BELOW) MAY LEARN ABOUT AND BOOK SERVICES. YOU UNDERSTAND AND AGREE THAT KITCHENSURFING IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN CHEFS AND CLIENTS, NOR IS KITCHENSURFING AN AGENT OR INSURER. KITCHENSURFING HAS NO CONTROL OVER THE CONDUCT OF CHEFS, CLIENTS, GUESTS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY ACCOMMODATIONS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, VIA THE APPLICATION OR THROUGH THE SERVICES, OR BY PARTICIPATING IN THE REFERRAL PROGRAM, YOU ARE INDICATING THAT YOU HAVE READ THESE TERMS, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE AND APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR TO PARTICIPATE IN THE REFERRAL PROGRAM. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
Kitchensurfing reserves the right, at its sole discretion, to modify the Site, Application or Services or to modify these Terms, including the Service Fees, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or via the Application or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, Application or Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Application and Services.
The Site, Application and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
The Site, Application and Services can be used to facilitate the listing and booking of Chefs and other culinary services (“Services”). Such Services are included in Listings on the Site, Application and Services by Chefs. You may view Listings as an unregistered visitor to the Site, Application and Services; however, if you wish to book a Service or create a Listing, you must first register to create an Kitchensurfing Account (defined below).
As stated above, Kitchensurfing makes available a platform or marketplace with related technology for Clients and Chefs to meet online and arrange for bookings of Services. Kitchensurfing is not an owner or operator of an agency, including, but not limited to, chefs, catering services, restaurants, food professionals or Services, nor is it a provider of properties, including, but not limited to, event venues, public halls, other lodgings or Services and Kitchensurfing does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control equipment and ingredients used by Chefs or Clients in the conduct of exchanging Services. Kitchensurfing’s responsibilities are limited to: (i) facilitating the availability of the Site, Application and Services and (ii) serving as the limited agent of each Chef for the purpose of accepting payments from Clients on behalf of the Chef.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATION AND SERVICES ARE INTENDED TO BE USED TO FACILITATE THE BOOKING OF SERVICES. KITCHENSURFING CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS AND THE CONDITION, LEGALITY OR SUITABILITY OF ANY SERVICES. KITCHENSURFING IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL LISTINGS AND SERVICES. ACCORDINGLY, ANY BOOKINGS WILL BE MADE AT THE CLIENT’S OWN RISK.
In order to access certain features of the Site and Application, and to book a Service or create a Listing, you must register to create an account (“Kitchensurfing Account”) and become a Member. You may register to join the Services directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third party social networking sites (“SNS”) (including, but not limited to, Facebook); each such account, a “Third Party Account”, via our Site or Application, as described below. As part of the functionality of the Site, Application and Services, you may link your Kitchensurfing Account with Third Party Accounts, by either: (i) providing your Third Party Account login information to Kitchensurfing through the Site, Services or Application; or (ii) allowing Kitchensurfing to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Kitchensurfing and/or grant Kitchensurfing access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Kitchensurfing to pay any fees or making Kitchensurfing subject to any usage limitations imposed by such third party service providers. By granting Kitchensurfing access to any Third Party Accounts, you understand that Kitchensurfing will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Site, Services and Application via your Kitchensurfing Account and Kitchensurfing Account profile page. Unless otherwise specified in these Terms, all SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Kitchensurfing Account on the Site, Services and Application. Please note that if a Third Party Account or associated service becomes unavailable or Kitchensurfing’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site, Services and Application. You have the ability to disable the connection between your Kitchensurfing Account and your Third Party Accounts, at any time, by accessing the “Settings” section of the Site and Application. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Kitchensurfing makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement and Kitchensurfing is not responsible for any SNS Content.
We will create your Kitchensurfing Account and your Kitchensurfing Account profile page for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Kitchensurfing Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Kitchensurfing reserves the right to suspend or terminate your Kitchensurfing Account and your access to the Site, Application and Services if you create more than one (1) Kitchensurfing Account or if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Kitchensurfing Account, whether or not you have authorized such activities or actions. You will immediately notify Kitchensurfing of any unauthorized use of your Kitchensurfing Account.
As a Member, you may create Listings. To this end, you will be asked a variety of questions about the Services to be listed, including, but not limited to, the location, past work history, ingredients, menus, availability of the Services and pricing and related rules and financial terms. Listings will be made publicly available via the Site, Application and Services. Other Members will be able to book your Services via the Site, Application and Services based upon the information provided in your Listing. You understand and agree that once a Client requests a booking of your Services, the price for such booking may not be altered.
You acknowledge and agree that you are responsible for any and all Listings you post. Accordingly, you represent and warrant that any Listing you post and the booking of, or Client engagement, with Services in a Listing you post (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) be in compliance with all applicable laws, Tax requirements, and rules and regulations that may apply to any Accommodation included in a Listing you post, including, but not limited to, zoning laws and laws governing rentals of residential and other properties and (b) not conflict with the rights of third parties. Please note that Kitchensurfing assumes no responsibility for a Chef’s compliance with any applicable laws, rules and regulations. Kitchensurfing reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Kitchensurfing, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Site, Application or Services.
You understand and agree that Kitchensurfing does not act as an insurer or as a contracting agent for you as a Chef. If a Client requests a booking of your Services and retains your Services, any agreement you enter into with such Client is between you and the client; and Kitchensurfing is not a party thereto. Notwithstanding the foregoing, Kitchensurfing serves as the limited authorized agent of the Chef for the purpose of accepting payments from Clients on behalf of the Chef and is responsible for transmitting such payments to the Chef.
When you create a Listing, you may also choose to include certain requirements which must be met by the Members who are eligible to request a booking of your Accommodation, including, but not limited to, requiring Members to have a profile picture or verified phone number, in order to book your Services. Any Member wishing to book Services included in Listings with such requirements must meet these requirements. More information on how to set such requirements is available via the “Chef Guide” section of the Site, Application and Services.
If you are a Chef, Kitchensurfing makes certain tools available to you to help you to make informed decisions about which Members you choose to confirm for booking for your Accommodation. You acknowledge and agree that, as a Chef, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who retain your Services or are otherwise present at the place of Service at your request or invitation, excluding the Client (and the individuals the Client invites to the place of Services, if applicable.)
Kitchensurfing recommends that Chefs obtain appropriate insurance for their Services. Please review any insurance policy that you may have for your Services carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Clients (and the individuals the Client invites to the Services, if applicable) while providing your Services.
Kitchensurfing does not endorse any Members or any Services. In addition, although these Terms require Members to provide accurate information, we do not attempt to confirm, and do not confirm, any Member’s purported identity. You are responsible for determining the identity and suitability of others who you contact via the Site, Application and Services. Kitchensurfing is not responsible for any damage or harm resulting from your interactions with other Members.
By using the Site, Application or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Kitchensurfing with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any bookings or Listings made by you. This limitation shall not apply to any claim by a Chef against Kitchensurfing regarding the remittance of payments received from a Client by Kitchensurfing on behalf of a Chef, which instead shall be subject to the limitations described in the section below entitled “Limitation of Liability”.
The fees displayed in each booking are comprised of the Services Fees (defined below) and the Credit Card Fee (defined below.) Where applicable, Taxes may be charged in addition to the Services Fees and Client Fees. The Services Fees, the Client Fees and applicable Taxes are collectively referred to in these Terms as the “Total Fees”. The amounts due and payable by a Client solely relating to a Chef’s Services are the “Chef’s Fee”. Please note that it is the Chef and not Kitchensurfing which determines the Chef’s Fees. The Services Fee may include an ingredients fee, at the Chef’s discretion.
Kitchensurfing charges an additional Credit Card Fee to Clients based upon a percentage of applicable Chef’s Fees. The Credit Card Fees are added to the Chef’s Fees to calculate the Total Fees (which will also include applicable Taxes). Kitchensurfing will collect the Total Fees at the time of booking confirmation and will initiate payment of the Chef’s Fees (less Kitchensurfing’s commission (defined below)) to the Chef within 24 hours of when the Chef provides the Services agreed upon.
Each Chef hereby appoints Kitchensurfing as the Chef’s limited agent solely for the purpose of collecting payments made by Clients on behalf of the Chef. Each Chef agrees that payment made by a Client to Kitchensurfing shall be considered the same as a payment made directly to the Chef and the Chef will make the Services available to Client in the agreed upon manner as if the Chef has received the Chef’s Fees. Each Chef agrees that, Kitchensurfing may, in accordance with the cancellation policy selected by the Chef and reflected in the relevant Listing, (i) permit the Client to cancel the booking and (ii) refund to the Client that portion of the Chef’s Fees specified in the applicable cancellation policy. In accepting appointment as the limited authorized agent of the Chef, Kitchensurfing assumes no liability for any acts or omissions of the Chef.
Please note that Kitchensurfing does not currently charge fees for the creation of Listings. However, you acknowledge and agree that Kitchensurfing reserves the right, in its sole discretion, to charge you for and collect fees from you for the creation of Listings. Please note that Kitchensurfing will provide notice of any Listing fee collection via the Site, Application and Services, prior to implementing such a Listing fee feature.
The Chefs, not Kitchensurfing, are solely responsible for honoring any confirmed bookings and making available any Services reserved through the Site, Application and Services. If you, as a Client, choose to enter into a transaction with a Chef for the booking of a Service, you agree and understand that you will be required to enter into an agreement with the Chef and you agree to accept any terms, conditions, rules and restrictions associated with such Services imposed by the Chef. You acknowledge and agree that you, and not Kitchensurfing, will be responsible for performing the obligations of any such agreements, that Kitchensurfing is not a party to such agreements, and that, with the exception of its payment obligations hereunder, Kitchensurfing disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that Kitchensurfing is not a party to the agreement between you and the Chef, Kitchensurfing acts as the Chef’s payment agent for the limited purpose of accepting payments from you on behalf of the Chef. Upon your payment of amounts to Kitchensurfing which are due to the Chef, your payment obligation to the Chef for such amounts is extinguished, and Kitchensurfing is responsible for remitting such amounts, less Kitchensurfing’s Fees, to the Chef. In the event that Kitchensurfing does not remit any such amounts to a Chef, such Chef will have recourse only against Kitchensurfing.
Bookings for Services will specify the Total Fees. You agree to pay Kitchensurfing for the Total Fees for any booking requested in connection with your Kitchensurfing Account if such requested bookings are confirmed by the applicable Chef. In order to establish a booking pending the applicable Chef’s confirmation of your requested booking, you understand and agree that Kitchensurfing, on behalf of the Chef, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting ( e.g. one euro or one British pound) to verify your credit card. Once Kitchensurfing receives confirmation of your booking from the applicable Chef, Kitchensurfing will collect the Total Fees in accordance with the terms and conditions of these Terms and the pricing terms set forth in the applicable Listing. Please note that Kitchensurfing cannot control any fees that may be charged to a Client by his or her bank related to Kitchensurfing’s collection of the Total Fees, and Kitchensurfing disclaims all liability in this regard.
Chefs may choose to include security deposits in their Listings (“Security Deposits”). Each Listing will describe whether a Security Deposit is required for the applicable Services. If a Security Deposit is included in a Service for a confirmed booking, Kitchensurfing will, in its capacity as the payment agent of the Chef, use its commercially reasonable efforts to obtain a pre-authorization of the Client’s credit card in the amount the Chef determines for the Security Deposit within a reasonable time prior to the date of service. Kitchensurfing will also use its commercially reasonable efforts to address Chefs’ requests and claims related to Security Deposits, but Kitchensurfing is not responsible for administering or accepting any claims by Chefs related to Security Deposits, and disclaims any and all liability in this regard.
In consideration for providing the Services, Kitchensurfing collects service fees from Chefs and Clients (“Service Fees”). Service Fees are made up of two (2) components: (i) Credit Card Fees and (ii) a fee that is charged to the Chef based upon a percentage of the amount of the Total Fees (“Chef Payment Fees”). Where applicable, Taxes may also be charged in addition to the Credit Card Fees. Chef Payment Fees are deducted from the Total Fees before remitting the Chef’s Fees to the Chef, within 24 hours of the time of service. Credit Card Fees are, as noted above, included in the Total Fees.
Balances will be remitted by Kitchensurfing to Chefs via check, PayPal, direct deposit or other payment methods described on the Site or via the Application. Except as otherwise provided herein, Service Fees are non-refundable.
If, as a Client, you wish to cancel a confirmed booking made via the Site, Application and Services, prior to the date of Services, the cancellation policy of the Chef contained in the applicable Booking will apply to such cancellation. Our ability to refund the Accommodation Fees and other amounts charged to you will depend upon the terms of the applicable cancellation policy. Details regarding refunds and cancellation policies are available via the Site and Application.
If a chef cancels a confirmed booking made via the Site, Services, and Application, (i) Kitchensurfing will refund the Total Fees for such booking to the applicable Client within a commercially reasonable time of the cancellation and (ii) the Client will receive an email or other communication from Kitchensurfing containing alternative Listings and other related information. If the Client requests a booking from one of the alternative Listings and the Chef associated with such alternative Listing confirms the Client’s requested booking, then the Client agrees to pay Kitchensurfing the Total Fees relating to the confirmed booking for the Accommodation in the alternative Listing, in accordance with these Terms. If a Chef cancelled a confirmed booking and you, as a Client, have not received an email or other communication from Kitchensurfing, please contact Kitchensurfing at email@example.com
In some instances, Clients may be required to make recurring, incremental payments toward the Total Fees owed for a confirmed booking before date of Services (collectively, “Recurring Payments”). More information on Recurring Payments will be made available via the Site, Application and Services, if applicable. If Recurring Payments apply to your payment obligations for Total Fees owed for a confirmed booking, you authorize Kitchensurfing, on behalf of the Chef, to collect the Total Fees in the increments and at the frequency associated with the applicable Recurring Payments, identified on the Site, Application and Services.
Some Chefs may pledge to donate a portion of the funds they receive from confirmed bookings made via the Site, Application and Services to a particular cause or charity. We do not control, and will not take any responsibility or liability for, whether the Chef does in fact make the donation he or she pledged to make.
IRS regulation, regarding federal tax reporting requirements, stipulates that Kitchensurfing must collect IRS Form W-9 from all property owners in the United States. You understand and agree that you are solely responsible for determining your applicable Tax reporting requirements in consultation with your tax advisors. Kitchensurfing cannot and does not offer Tax-related advice to any Members of the Site, Application and Services. Additionally, please note that each Chef is responsible for determining local indirect Taxes and for including any applicable Taxes to be collected or obligations relating to applicable Taxes in Listings. Where applicable, or based upon request from a Chef, Kitchensurfing may issue a valid VAT invoice to such Chef.
As part of the Services, Kitchensurfing may provide a feature through which Members may view Total Fees for various Listings in foreign currencies. You understand and agree that these views of Total Fees are for informational purposes only and are not the official Total Fees for the Listings. If you (as a Client) request a booking, you will be notified of the currency in which you will be charged together with the corresponding amount of Total Fees if your booking is confirmed by a Chef. The currency in which you will be charged will be determined by Kitchensurfing based on the payment method you select and the location of the Accommodation in the Listing you are booking. If the currency in which you will be charged is different from the currency chosen by the Chef to receive payment, Kitchensurfing will be responsible for the required currency conversion processing, including the costs thereof, which will be calculated based on the most current applicable foreign exchange rate that Kitchensurfing has uploaded to the Site as of the date and time that your booking is confirmed (the “Applicable Exchange Rate”). You acknowledge that the Applicable Exchange Rate used for currency conversion processing may not be identical to the applicable market rate in effect at the specific time such processing occurs because: (i) although Kitchensurfing updates the Applicable Exchange Rate on a regular basis, it does not update such rate on a real-time basis; and (ii) the Applicable Exchange Rate may include an incremental cost or margin that is not included in the applicable market rate. For the avoidance of doubt, Kitchensurfing will retain any profits (and will bear any losses) that result from such currency conversion processing due to changes in the applicable foreign exchange rate between the date your booking is confirmed and the date Kitchensurfing makes payment to a Chef.
As a Chef, you are responsible for leaving the premises of Services in the condition it was in when you arrived. You acknowledge and agree that, as a Chef, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who you invite to, or otherwise provide access to, the premises of Service. In the event that a Client claims otherwise and provides evidence of damage, including but not limited to, photographs, you agree to pay the cost of replacing the damaged items with equivalent items.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site, Application, Services and Content. In connection with your use of our Site, Application and Services, you may not and you agree that you will not:
or post, upload, publish, submit or transmit any Content that:
systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
use, display, mirror or frame the Site or Application, or any individual element within the Site, Services, or Application, Kitchensurfing’s name, any Kitchensurfing trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Kitchensurfing’s express written consent;
access, tamper with, or use non-public areas of the Site or Application, Kitchensurfing’s computer systems, or the technical delivery systems of Kitchensurfing’s providers;
attempt to probe, scan, or test the vulnerability of any Kitchensurfing system or network or breach any security or authentication measures;
avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Kitchensurfing or any of Kitchensurfing’s providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content; or
advocate, encourage, or assist any third party in doing any of the foregoing.
Kitchensurfing will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Kitchensurfing may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Kitchensurfing has no obligation to monitor your access to or use of the Site, Application, Services or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating the Site, Application and Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Kitchensurfing reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Kitchensurfing, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
The Site, Application, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Application, Services and Collective Content, including all associated intellectual property rights is the exclusive property of Kitchensurfing and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application, Services, or Collective Content.
Subject to your compliance with these Terms, Kitchensurfing grants you a limited non-exclusive, non-transferable license to download and install a copy of the Application on a single mobile device or computer that you own or control and run such copy of the Application solely for your own personal use. Furthermore, with respect to any App Store Sourced Application (defined below), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Kitchensurfing reserves all rights in the Application not expressly granted to you by these Terms.
Subject to your compliance with the terms and conditions of these Terms, Kitchensurfing grants you a limited, non-exclusive, non-transferable license, to (i) access and view any Kitchensurfing Content solely for your personal and non-commercial purposes and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Application, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Kitchensurfing or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Application and Services, you hereby grant to Kitchensurfing a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, or by means of the Site, Application and Services. Kitchensurfing does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Application and Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Application and Services or you have all rights, licenses, consents and releases that are necessary to grant to Kitchensurfing the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Kitchensurfing’s use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Site, Application and Services may contain links to third-party websites or resources. You acknowledge and agree that Kitchensurfing is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Kitchensurfing of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
All trademarks, service marks, logos, trade names and any other proprietary designations of Kitchensurfing used herein are trademarks or registered trademarks of Kitchensurfing. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org or through the “Contact” (www.kitchensurfing.com/contact) section of the Site and Application. You acknowledge and agree that all Feedback will be the sole and exclusive property of Kitchensurfing and you hereby irrevocably assign to Kitchensurfing and agree to irrevocably assign to Kitchensurfing all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Kitchensurfing’s request and expense, you will execute documents and take such further acts as Kitchensurfing may reasonably request to assist Kitchensurfing to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Kitchensurfing respects copyright law and expects its users to do the same. It is Kitchensurfing’s policy to terminate in appropriate circumstances the Kitchensurfing Accounts of Members or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Kitchensurfing’s Copyright Policy at www.kitchensurfing.com/tos, for further information.
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate these Terms or your access to our Site, Application and Services, and (b) deactivate or cancel your Kitchensurfing Account. Upon termination we will promptly pay you any amounts we reasonably determine we owe you in our discretion, which we are legally obligated to pay you. In the event Kitchensurfing terminates these Terms, or your access to our Site, Application and Services or deactivates or cancels your Kitchensurfing Account you will remain liable for all amounts due hereunder. You may cancel your Kitchensurfing Account at any time via the “Cancel Account” feature of the Services or by sending an email to email@example.com. Please note that if your Kitchensurfing Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site, Application and Services, including, but not limited to, any reviews or Feedback.
IF YOU CHOOSE TO USE THE SITE, APPLICATION, SERVICES AND PARTICIPATE IN THE REFERRAL PROGRAM, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT KITCHENSURFING DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, CLIENTS AND CHEFS, BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS SOLE DISCRETION. THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT AND REFERRAL PROGRAM ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, KITCHENSURFING EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KITCHENSURFING MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE LISTINGS OR ANY ACCOMMODATIONS, OR THE REFERRAL PROGRAM WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. KITCHENSURFING MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, ACCOMMODATIONS, YOUR ACCRUAL OF KITCHENSURFING TRAVEL CREDITS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATION, SERVICES OR REFERRAL PROGRAM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KITCHENSURFING OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. BUT MAY CONDUCT SUCH BACKGROUND CHECKS IN ITS
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY CHEFS OR CLIENTS. YOU UNDERSTAND THAT KITCHENSURFING DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATION OR SERVICES OR TO REVIEW OR VISIT ANY ACCOMMODATIONS. KITCHENSURFING MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATION OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATION OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATION OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION OR SERVICES, INCLUDING, BUT NOT LIMITED TO, CLIENTS AND CHEFS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY KITCHENSURFING. NOTWITHSTANDING KITCHENSURFING’S APPOINTMENT AS THE LIMITED AGENT OF THE CHEFS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM CLIENTS ON BEHALF OF THE CHEFS, KITCHENSURFING EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY CLIENT OR OTHER THIRD PARTY.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION, SERVICES AND COLLECTIVE CONTENT, YOUR LISTING OR BOOKING OF ANY ACCOMMODATIONS VIA THE SITE, APPLICATION AND SERVICES, YOUR PARTICIPATION IN THE REFERRAL PROGRAM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF KITCHENSURFING WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER KITCHENSURFING NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION, SERVICES, COLLECTIVE CONTENT OR THE REFERRAL PROGRAM WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATION, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATION, SERVICES, OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM OR FROM YOUR LISTING OR BOOKING OF ANY ACCOMMODATION VIA THE SITE, APPLICATION AND SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KITCHENSURFING HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE CHEFS PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE KITCHENSURFING HOST GUARANTEE, IN NO EVENT WILL KITCHENSURFING’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATION AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY ACCOMMODATION VIA THE SITE, APPLICATION AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION, SERVICES, OR COLLECTIVE CONTENT OR YOUR PARTICIPATION IN THE REFERRAL PROGRAM AND IN CONNECTION WITH ANY ACCOMMODATION OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITE, APPLICATION AND SERVICES AS A CLIENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A CHEF, THE AMOUNTS PAID BY KITCHENSURFING TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KITCHENSURFING AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold Kitchensurfing and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Application, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) booking of an Accommodation, (iii) creation of a Listing or (iv) the use, condition or rental of an Accommodation by you, including, but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of a rental, booking or use of a Accommodation and (d) your participation in the Referral Program or your accrual of any Kitchensurfing Travel Credits.
You may not use, export, re-export, import, or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Site, Application and Services, you represent and warrant that (i) neither you nor your listed Accommodation is 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. You also will not use the Site, Application and Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Kitchensurfing does not permit Listings associated with certain countries due to U.S. embargo restrictions.
If as a client, you hire a chef OR as a chef, accept a booking from a client who you feel is acting or has acted inappropriately, including but not limited to, anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Kitchensurfing by contacting us with your police station and report number at firstname.lastname@example.org; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between Kitchensurfing and you regarding the Site, Application, Services, Collective Content, Referral Program, and any bookings or Listings of Services made via the Site, Application and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Kitchensurfing and you regarding bookings or listings of Services, the Site, Application, Services, Collective Content and Referral Program.
You may not assign or transfer these Terms, by operation of law or otherwise, without Kitchensurfing’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Kitchensurfing may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Kitchensurfing (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
These Terms will be interpreted in accordance with the laws of the State of New York and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Kings County, Brooklyn, New York or a United States District Court, Eastern District of New York, for any actions for which the parties retain 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, as set forth in the Dispute Resolution provision below.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at adr.org/aaa/ShowPDF?doc=ADRSTG_004314.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Kitchensurfing 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 Kitchensurfing 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 AAA Rules. Subject to the 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.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the 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 damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages 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 relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Kitchensurfing will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Kitchensurfing 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)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Kitchensurfing changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Kitchensurfing’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Kitchensurfing 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).
The failure of Kitchensurfing to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Kitchensurfing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions about these Terms or any App Store Sourced Application, please contact Kitchensurfing at firstname.lastname@example.org