Terms of Service

These Terms of Service ("Terms of Service" or "Agreement") are between You and Member Kitchens, LLC ("Member Kitchens", "we" or "us") and govern your access and use of the website which may be located at https://memberkitchens.com ("Website"), and any related services provided by Member Kitchens including related applications, software, platforms, and mobile application ("Services") whether or not accessed through the Website. You are hereby notified that the Website may have a name in the URL address bar that is different than the URL listed above, and notwithstanding, you hereby agree to be bound by these Terms of Service. NOTE THAT THESE TERMS OF SERVICE CONTAIN LIABILITY LIMITATIONS FOR MEMBER KITCHENS, AND REQUIREMENTS THAT YOU INDEMNIFY MEMBER KITCHENS.

By accessing the Website, by creating an account thereon, or by using any Services provided by or through Member Kitchens, you agree to abide by these Terms of Service and to comply with all applicable laws and regulations. If you do not agree with these Terms of Service, you are prohibited from using or accessing this website or using any other Services provided by Member Kitchens.

"You" "your" and "Customer" refers to any individual who creates an account on or accesses the Website, or, if the Website is being used on behalf of an entity by an individual authorized to agree to such terms on behalf of such entity, then "you" includes such entity. If you are accessing the Website on behalf of an entity, you represent and warrant that (i) you are an authorized representative of the entity with the authority to bind the entity to these Terms of Service, and (ii) you agree to these Terms of Service on that entity's behalf.

These Terms of Service include and hereby incorporate by reference the Member Kitchens Privacy Policy, Member Kitchens Acceptable Use Policy, Member Kitchens Cookie Policy (found at https://memberkitchens.com/cookie-policy), and any other Member Kitchens terms or policies, or exhibits linked to, attached to, or incorporated by reference into these Terms of Service ("Policy Document"). Our Privacy Policy describes how we handle the information you provide to us when you use the Service. For an explanation of our privacy practices, please visit our Privacy Policy located at https://memberkitchens.com/privacy-policy.

1. User Rights and Restrictions

1.1. Use of Services

Subject to Customer's compliance with these Terms of Service, including the payment of all fees, Member Kitchens hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except as provided herein) right, during the Term (defined below), to access and use the Services solely for Customer's internal business purposes.

1.2. General Restrictions

By using this website, you warrant on behalf of yourself, your users, and other parties you represent that you will comply with Member Kitchens' Acceptable Use Policy (found at https://memberkitchens.com/fair-use-policy), and will not:

• (a) modify, translate, copy, prepare, or develop derivative works based on the Service;
• (b) decompile, decipher, disassemble, reverse assemble, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Services, or any materials and software contained on the Website;
• (c) remove, obscure, or alter any copyright, patent, trademark, service mark or other proprietary notations from any materials and software on the Services or the Website;
• (d) transfer the materials to another person or "mirror" the materials on any other server;
• (e) access the Services in order to build a competitive product or service;
• (f) use the Website or Services in a way that abuses or disrupts Member Kitchens' networks or any other Services;
• (g) use the Website or Services to transmit, store or publish: (1) any unauthorized advertising or spam, or (2) harassing, indecent, obscene, fraudulent, or unlawful material;
• (h) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs through the Services;
• (i) use the Website or Services in violation of any applicable laws or regulations;
• (j) attempt to gain unauthorized access to the Services or related systems or networks;
• (k) harvest, collect, or gather user data without the user's consent;
• (l) use this website or its associated services in such a way that may infringe the privacy, intellectual property rights, or other rights of third parties; or
• (m) otherwise use the Services except as expressly permitted herein.

1.3. Availability of Services

We shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Member Kitchens or by third-party providers, or because of other causes beyond Member Kitchens' reasonable control, but Member Kitchens shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

1.4. Modification of the Services

Member Kitchens reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Member Kitchens shall not be liable to you or to any third-party for any modification, suspension, termination or discontinuance of the Service.

1.5. Additional Terms

Customer's subscription to or use of certain Services or features of the Services may be subject to additional terms, policies, rules, or guidelines that we may post on or link to from these Terms of Service such as, without limitation, Member Kitchens' Acceptable Use Policy and Cookie Policy ("Additional Terms"). To the extent applicable, all Additional Terms are incorporated by this reference into, and made a part of, these Terms of Service. If Customer purchases or otherwise uses any of the Services, Customer's use is subject to and Customer accepts any applicable Additional Terms.

1.6. Authorized Users

By agreeing to these Terms of Service, Customer warrants that it and its employees, agents, contractors, and any other users whom Customer has authorized to access the Services on its behalf, including, without limitation, its customers ("Authorized Users"): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all applicable laws and regulations when using the Services. Customer may permit its Authorized Users to use the Services provided their use is for Customer's benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement, which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.

1.7. Responsibility for Authorized Users

Customer will be responsible and liable for all Authorized Users' use and access and their compliance with this Agreement, including all applicable laws and regulations. Customer is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Term (defined below), as Customer deems appropriate. Customer will be solely responsible for any and all actions taken using its and its Authorized Users' accounts, passwords, or access credentials and must ensure that each Authorized User has a separate and distinct user account (with separate and distinct access credentials) that is not shared with any other user(s). Customer must notify Member Kitchens immediately of any breach of security or unauthorized use of its account.

1.8. Use by Others

If your access to the Services results from an invitation to the Services from a customer of Member Kitchens, including through such customer's account or website, you are subject to these Terms of Service.

2. Intellectual Property

Member Kitchens retains ownership of all rights (including all intellectual property rights) in the Services, Website, and in all trade names, trademarks and service marks associated or displayed with the Services and Website. We welcome feedback, comments and suggestions for improvements to the Services ("Feedback"). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services, the Website or in any such Feedback. All Feedback becomes the sole and exclusive property of Member Kitchens, and Member Kitchens may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Member Kitchens any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.

3. Customer Data

3.1. Rights in Customer Data

Customer retains all right, title, and interest (including any intellectual property rights) in and to any text, images, or other content and data that Customer selects or submits for use or incorporation with the Services, including, without limitation, Third Party Content ("Customer Data" or "User Content"). "Third-Party Content" means content, data, or other materials that Customer provides to Member Kitchens from its third-party data providers such as your customers. Customer grants Member Kitchens a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, sub-license, index, modify, and create derivative works of Customer Data as necessary to provide the Services (including, but not limited to, developing, modifying, improving, supporting, customizing, and operating the Services). Additional permissions regarding the use and disclosure of Customer Data are found in the Member Kitchens Privacy Policy.

3.2. Aggregate/Anonymous Data

Member Kitchens may generate usage data and aggregate (including with other customers' data) Customer Data for the purpose of (1) developing, improving or customizing the Services, and (2) publishing, displaying, and distributing anonymous information (i.e., information where Customer or its customers are not capable of being identified) derived from Customer Data; however, Member Kitchens will not publish, display or distribute your proprietary content or that of your customers. Such aggregated data is Member Kitchens technology and may be used for any business purpose during or after the term of this Agreement. Member Kitchens will not distribute aggregated data in a manner that personally identifies Customer.

3.3. Monitoring

Customer understands and agrees that Member Kitchens may monitor and analyze User Content to improve the Website or Services; to improve Customer's experience using the Website or Services; to customize and communicate informational or product offerings and promotions to Customer; and/or to make the Website or Services more helpful or useful to Customer and other users. This may include use of technologies (such as cookie, pixel, or other tracking technologies) that maintain records of browsing sessions and other activities on the Website and Services. Customer also understands that any third-party platform(s) or third-party provider(s) Customer elects to use or access in conjunction with the Services may also monitor and analyze the Customer Data in connection with such third-party platforms, to customize and communicate information or product offerings and promotions to Customer; to ensure compliance with applicable terms of use; and to make such third-party platform(s) more helpful or useful to Customer and other users.

3.4. Privacy and Data Processing

The Member Kitchens Privacy Policy describes how we handle the information you provide to us, or we otherwise collect when you use the Services. You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including, as applicable, the transfer of this information to the United States and other countries for storage, processing, and use by Member Kitchens and its affiliates.

3.5. Restrictions on Customer Data

The rights to Customer Data you grant us can be terminated at any time by deleting your content or account. However, to the extent that we (or our partners) have used Customer Data in connection with commercial or sponsored content, the rights will continue until the relevant commercial or post has been discontinued by us. You give us permission to use your username and other identifying information associated with your account only in a manner that is consistent with your privacy preferences and our Privacy Policy.

3.6. Data Portability

If you submit a request in writing within thirty (30) days after termination of your use of the Services for a complete export of Customer Data, Member Kitchens will provide it to You in a commonly used, machine-readable format. This export will be provided within 30 days of such written request but thereafter we may delete (but are not obligated to) stored Customer Data. Requests for Customer Data downloads at any other time will be subject to Member Kitchens reasonable discretion and additional fees. Member Kitchens will have no obligation to provide you with access to Customer Data if you are in breach of any obligations herein, including payment obligations.

4. Customer Obligations

4.1. Warranty

You warrant and represent that: (a) you have sole ownership of any Customer Data you provide to us, or otherwise have legal rights to provide such data, and Customer Data will not violate third-party rights, including intellectual property, privacy, and publicity rights; and (b) Member Kitchens' possession and/or use of the Customer Data in connection with the Services, as contemplated hereunder, will not violate any contract, statute, regulation, or other third-party rights. If Customer receives any take-down requests or infringement notices related to User Content, it will promptly stop using the applicable User Content with the Services and notify Member Kitchens immediately.

4.2. Compliance with Laws

You understand and accept that you are solely responsible for ensuring compliance with applicable laws and regulations, and Member Kitchens expressly disclaims any liability for your non-compliance. Failure to comply with laws and regulations applicable to you may result in legal consequences, including but not limited to indemnification of Member Kitchens for any related claims, damages, or penalties.

5. Fees and Payment

5.1. Payment of Fees

Payment for Services ("Fees") shall be due and payable at the payment interval designated when you subscribed, whether through Member Kitchens' Website or through an order form. In our discretion, we may pro-rate Fees if modifications to the Services are requested. For all payments for invoices which are due in advance, or payments due and payable in arrears (such as, without limitation, for feature development, video fees, or active user fees), interest will accrue on past due balances at the lesser of 1.5% per month or the highest rate allowed by law if payment is not received by the due date established by Member Kitchens. If payment is overdue, Member Kitchens will have the right to suspend Customer's access to the Services and/or seek to enforce Customer's payment obligation, including use of third-party services. Member Kitchens shall have no responsibility for any damages whatsoever for suspension of an account pursuant to this paragraph. If Member Kitchens sends Customer's account to collection and/or initiates legal action, Member Kitchens may seek to recover all costs and expenses of such action, including reasonable attorney's fees and court costs.

5.2. Fee Increase

Member Kitchens may increase Fees once per calendar year upon 30 days' prior written notice. Member Kitchens may increase integration Fees or any other third-party component Fees included in Company's Services at any time upon 30 days' written notice.

5.3. Taxes

Customer is responsible for payment of all taxes (excluding those on Member Kitchens' net income) relating to the provision of the Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to Member Kitchens to evidence Customer's tax exemption status is provided by Customer to us prior to the delivery of Services.

5.4. Free Trials or "Freemium" Services

Member Kitchens may provide free accounts and trial subscriptions which are subject to certain restrictions and limitations as determined by Member Kitchens in its sole and absolute discretion. If access to the Services is provided to you for free or for trial purposes, such access is governed by these Terms of Service. At any time prior to or during the free accounts or trial period, Member Kitchens may, in its sole and absolute discretion, terminate that access without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the free accounts or trial access. After the free or trial access period expires, you may continue using the Services in a paid subscription, if available, or as otherwise permitted by Member Kitchens. During the free or trial period, no express or implied warranties shall apply to the Services; all Services are provided "as-is" with all defects, and no technical or other support is included.

6. Term and Termination

6.1. Term

The length of any subscription to the Services is stated when you subscribe through Member Kitchens' Website or through an order form ("Term"). The Term shall automatically renew on the day following the completion of the applicable Term for the same length of time of the original Term unless advanced written notice of your termination is received by Member Kitchens at least thirty (30) days in advance of the renewal. Customer will pay in full for the Services up to and including the last day on which the Services are provided.

6.2. Suspension of Services

We may suspend Customer's (or any Authorized User's, as applicable) access to the Services if: (a) your account is overdue, or (b) you have breached any terms in these Terms of Service. Member Kitchens may also suspend Customer's (or any Authorized User's, as applicable) access to the Services, remove Customer Data, or disable third-party products integrated or provided with the Services, if Member Kitchens determines that: (i) you have breached these Terms of Service; or (ii) suspension is necessary to prevent harm or liability to Member Kitchens, other clients of Member Kitchens, or third parties, or to preserve the security, stability, availability, or integrity of the Services. Member Kitchens will have no liability for taking action as permitted above. For avoidance of doubt, Customer will remain responsible for payment of Fees during any suspension period other than for any suspension that: (a) is not due to the fault of Customer, and (b) lasts longer than five (5) days. Unless this Agreement has been terminated, Member Kitchens will cooperate with Customer to restore access to the Services once it verifies that the condition(s) requiring suspension have been resolved.

6.3. Termination for Cause

Either party may terminate the Services upon thirty (30) days' notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement; provided, Member Kitchens shall have thirty (30) days to provide a reasonable cure to an alleged material breach and if such cure is reasonably provided, the Term shall not terminate. If Member Kitchens deletes your account for any suspected breach of the Terms of Service by you, you are prohibited from re-registering for the Services under a different name. As applicable, if our agreement with a Member Kitchens customer who invited you to access the Services terminates, then your access to the Services will terminate immediately.

6.4. Survival

All sections which by their nature should survive the termination of the Terms of Service shall continue in full force and effect subsequent to and notwithstanding any termination of the Terms of Service by Member Kitchens or you. Termination will not limit any of Member Kitchens' other rights or remedies at law or in equity.

7. Confidentiality

7.1. Obligation of Confidentiality

Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Member Kitchens includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Member Kitchens to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

7.2. Exclusions

The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (excepting trade secrets) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third-party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

8. Third-Party Materials

The Service may display, include or make available content, data, information, applications or materials from third parties ("Third-Party Materials") or provide links to certain third-party websites. You agree that Member Kitchens is not responsible for the accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third-Party Materials or third-party websites, or for any other materials, products or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you. If you have any complaints in connection with any Third-Party Materials or third-party website, please contact such third-party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.

9. Indemnification

9.1. Indemnification by Customer

You agree to indemnify, defend and hold harmless Member Kitchens, its affiliates, and their respective officers, directors, employees, consultants, and agents (the "Member Kitchens Indemnified Parties") from and against any third-party claims ("Claims") and related costs, damages, liabilities, and expenses, including reasonable attorney's fees ("Losses") arising or pertaining to: (a) any breach of any of the representations, warranties, obligations, terms, or conditions of these Terms of Service by Customer, its affiliates, and their respective owners, directors, officers, representatives, agents, contractors, or personnel (collectively, "Representatives"); (b) the conduct of Customer or its Representatives, in performing actions or business pursuant to this Agreement; (c) the failure of Customer or its Representatives to comply with all applicable laws, regulations, guidelines or policies; or (d) Customer, or its Representatives: (i) did not collect or maintain personal information in accordance with all applicable privacy and data protection laws ("Privacy Laws"); (ii) transferred personal data to Member Kitchens in violation of Privacy Laws; and/or (iii) failed to provide notices to, and/or receive consents from the individual subjects of such personal information necessary in the treatment or the transfer of such personal information to or from Member Kitchens or any third-party, and the use and processing described herein, and in Member Kitchens' Privacy Policy, as updated from time to time. Customer may not settle any claim without Member Kitchens' prior written consent if the settlement does not fully release Member Kitchens from liability or would require Member Kitchens to admit fault, pay any amounts, or take or refrain from taking any action.

9.2. Indemnification by Member Kitchens

Member Kitchens shall hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Member Kitchens is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Member Kitchens will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Member Kitchens, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Member Kitchens, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Member Kitchens to be infringing, Member Kitchens may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate these Terms of Service and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

10. NO WARRANTIES OR REPRESENTATIONS

THE SERVICES ARE PROVIDED "AS IS," AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, SECURITY OR CONTENT OF THE SERVICES, OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FURTHERMORE, MEMBER KITCHENS DOES NOT WARRANT THAT THE SERVICES WILL BE FREE OF ERROR, VIRUSES OR OTHER MALICIOUS CODE, WILL BE UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY MEMBER KITCHENS.

11. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL MEMBER KITCHENS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SERVICES, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF MEMBER KITCHENS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. IN ANY CASE, MEMBER KITCHENS MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE WILL BE LIMITED TO FEES PAID BY YOU TO MEMBER KITCHENS DURING THE TWELVE MONTHS PRECEDING THE CLAIM.

12. Accuracy of Materials

The materials appearing on our website are not comprehensive and are for general information purposes only. Member Kitchens does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on this website, or otherwise relating to such materials or on any resources linked to this website.

13. Links

Member Kitchens has not reviewed all of the sites linked to its Website and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement, approval or control by Member Kitchens of the site. Use of any such linked site is at your own risk and we strongly advise you make your own investigations with respect to the suitability of those sites.

14. General

14.1. Waiver and Severability

In the event any provision hereof is deemed invalid or unenforceable by any court or governmental agency of competent jurisdiction, such provision will be deemed severed from the Terms of Service and all remaining provisions will be afforded full force and effect as if such severed provision had never been a provision hereof. No consent or waiver, express or implied, by any party to or of any breach by the other in the performance by the other of its obligations hereunder will be deemed or construed to be a consent or waiver to or of any other breach in the performance by such other party of the same or any other obligation of such party hereunder.

14.2. California Residents

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

14.3. Assignment

Neither party may assign or otherwise transfer this Agreement or any rights or obligations hereunder without the written consent of the other party, except that either party may, without such consent, assign or transfer this Agreement to a purchaser of all or substantially all of its assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise; provided, and notwithstanding the foregoing, Customer shall obtain written consent of Company if such transfer is to a competitor of Company. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.

14.4. Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of the Services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.

14.5. Jurisdiction and Choice of Law

These Terms of Service shall be governed by and construed under the laws of the State of California. All disputes and/or legal proceedings related to this Agreement shall be brought and maintained exclusively in federal or state courts located in San Diego County, California, and the parties agree to personal jurisdiction and convenient forum therein.

14.6. Dispute Resolution

Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, the parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential negotiations between persons who have authority to settle the controversy. All such negotiations shall be treated as compromise and settlement negotiations for purposes of the relevant rules of evidence. If the parties cannot reach an amicable resolution through this process within 20 business days, the parties may, if mutually agreeable, attempt to settle the dispute by mediation to take place in San Diego County, California. Any costs associated with mediation other than a monetary settlement shall be shared equally by the parties.

14.7. Force Majeure

Neither party will incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of the Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes a) beyond the reasonable control of a party, b) not reasonably foreseeable by a party, and c) not a result of any negligence of a party seeking protection under this provision.

14.8. Injunctive Relief

You acknowledge that any use of the Services contrary to these Terms of Service, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, will cause irreparable injury to Member Kitchens and under such circumstances Member Kitchens will be entitled to seek equitable relief without posting bond or other security in addition to any remedies it may have hereunder or at law.

14.9. No Agency

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between you and Member Kitchens is intended or created by these Terms of Service.

14.10. Amendments

Member Kitchens may change the terms of these Terms of Service at any time by posting modified terms on its Website, in which case we will update the "last updated" date at the top of the Terms of Service. It is your responsibility to review the Terms of Service from time to time to view any such changes. Any changes to these Terms of Service will take effect 30 days after the date of publication. Notwithstanding the preceding sentence, to the extent any updates apply to new functionality, or are required to comply with applicable law, they will be effective immediately. Your continued access or use of the Services after the modifications have become effective will be deemed acceptance of the modified Terms of Service.

14.11. Notices

You may contact us regarding the Service or the Terms of Service at: 2320 Rancho Cabeza Drive, Santa Rosa, CA 95404 (include "Attn: Legal Department" in the subject line), and by email at legal@memberkitchens.com. Member Kitchens may send notices to the e-mail addresses on Customer's account or Customer's last-known postal address. Member Kitchens may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on the Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Member Kitchens is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

14.12. Publicity

Member Kitchens may use your name, logo, and marks to identify you as a Customer on the Website and other marketing materials.

14.13. Communication with Customer

You agree that Member Kitchens may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number you provide to Member Kitchens. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify Member Kitchens immediately in the event that your contact information changes.

14.14. Survival

All sections of these Terms of Service which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

14.15. Headings

The headings used in this Agreement are for ease of reference only. They are not intended as a complete restatement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.