Effective Date: November 4th, 2022
These FPL Food Terms of Service (these “Terms of Service”) apply when you access, use or visit the FPL Food, LLC (referred to in these Terms of Service as “Company,” “we,” “us” and “our”) website located at www.fplfood.com (the “Site”). We prepared these Terms of Service to help explain the terms that apply to your use of the Site.
BY visiting the Site and/or affirmatively acknowledging your agreement to these Terms of Service, YOU ARE AGREEING TO These Terms of Service, which constitute a binding legal agreement between you and Company.
Notice regarding arbitration and dispute resolution: You and Company AGREE THAT Any future DISPUTES BETWEEN YOU AND Company WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, unless you opt-out in accordance with Section 10(f). Unless you opt-out of arbitration, YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. IF YOU WISH TO OPT-OUT OF ARBITRATION, FOLLOW THE OPT-OUT PROCEDURE SPECIFIED IN Section 10(F) BELOW.
AFFIRMATIVE REPRESENTATIONS REGARDING YOUR USE OF THE SITE. When you use the Site, you represent that:
(A) The information you submit is truthful and accurate;
(B) Your use of the Site does not violate any applicable laws or regulations;
(C) You are of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service; and
(D) Your use of the Site will comply with the terms and conditions set forth in these Terms of Service.
PROHIBITED ACTIVITIES. You agree that in connection with your use of the Site, you will not:
Use the Site in violation of any applicable laws, regulations, or other legal requirements;
Use the Site for any unauthorized purpose including engaging in unauthorized framing of, or linking to, the Site without our express written consent;
Transmit any virus, other computer instruction, or technological means intended to, or that may, disrupt, damage, or interfere with the use of computers or related systems;
Impersonate any other person or entity, provide false or misleading identification or information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
Violate our or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;
Engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site, including from any user of the Site, or use any means to scrape or crawl any part of the Site;
Participate in any fraudulent or illegal activity;
Decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Site, or any portion thereof;
Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Site; or
Circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Materials (as defined in Section 6) or enforce limitations on use of the Site or the Materials.
OUR INTELLECTUAL PROPERTY RIGHTS. All of the content on the Site and the trademarks, service marks, and logos contained on the Site (“Materials”), are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Site and the Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights in and to the Site and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials.
OUR MANAGEMENT OF THE SITE
(A) Our Right to Manage the Site. We reserve the right, but do not undertake the obligation to: (i) monitor or review the Site for violations of these Terms of Service and for compliance with our policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (iii) manage the Site in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Site; (iv) screen our users, or attempt to verify the statements of our users; (v) terminate or block you and other users for violating these Terms of Service; and/or (vi) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any content or any portion thereof.
(B) Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THESE TERMS OF SERVICE, OR VIOLATION OF ANY APPLICABLE LAW OR REGULATION.
WARRANTY DISCLAIMER; LIMITATION ON LIABILITY
(A) Disclaimer of Warranties.
(i) EXCEPT AS PROHIBITED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES. THE SITE AND ALL MATERIALS, CONTENT OR ITEMS PROVIDED THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE. EXCEPT AS PROHIBITED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE AND OUR PRODUCTS OR SERVICES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
(ii) EXCEPT AS PROHIBITED BY APPLICABLE LAW, WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE SITE’S CONTENT, THE CONTENT OF ANY SITE LINKED TO THE SITE, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE SITE OR LINKED TO BY THE SITE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THR SITE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE.
(iii) YOU AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE FOR ANY DELAY, FAILURE IN PERFORMANCE OR INTERRUPTION OF SERVICE, RESULTING DIRECTLY: (A) FROM ACTS OF GOD, ACTS OF ANY GOVERNMENTAL AGENCY, NATURAL DISASTERS, ACTS OF WAR, INSURRECTION OF TERRORISM, STRIKES OR LOCKOUTS, UNAUTHORIZED NETWORK OR COMPUTER INTRUSION, OR INTERNET- OR COMPUTER-RELATED VIRUSES, HACKER ATTACKS OR OTHER AGENTS INTRODUCED BY A THIRD PARTY, FAILURE OF THE INTERNET AND OTHER CONDITIONS BEYOND OUE CONTROL, (B) SOLEY FROM ANY TECHNICAL REQUIREMENT FOR WHICH YOU ARE RESPONSIBLE, OR (C) SOLEY FROM YOUR INTENTIONAL ACTS OR OMISSIONS.
(B) LIMITED LIABILITY. EXCEPT AS PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGE ARISING FROM YOUR USE OF THE SITE, MATERIALS OR ANY OTHER CONTENT THERIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OF SERVICE, EXCEPT A PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE SITE, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
(C) EXCEPTIONS TO DISCLAIMERS AND LIABILITY LIMITATIONS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS IN SECTIONS 9(A) AND (B) MAY NOT APPLY TO YOU.
(A) Initial Dispute Resolution. Company is available by email at firstname.lastname@example.org to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. Each of you and Company agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
(B) Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 10(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. You or we may elect to appear at the arbitration by phone or, if you and we both agree, to conduct it online, in lieu of appearing live. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars($250.00), Company will pay the additional cost. If Company is required to pay additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and Company will make arrangements to pay all necessary fees directly to JAMS. Company will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by Company if you do not prevail in arbitration. Company will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that the right to discovery may be more limited in arbitration than in court.
(C) Class Action and Class Arbitration Waiver. You and Company each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action, class arbitration, or other representative action, and you and Company each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 10(B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(D) Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
(E) Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
(F) 30 Day Right to Opt-Out You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 10(B) and 10(C) by sending written notice of your decision to opt-out by emailing Company at email@example.com. The notice must be sent within thirty (30) days of your first use of the Site, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, Company also will not be bound by them.
(G) Governing Law; Exclusive Venue for Litigation; Waiver of Jury Trial. These Terms of Service are governed by U.S. law and are subject to all applicable federal, state, and local laws and regulations. Except to the extent the FAA applies, all issues and questions concerning the construction, validity, interpretation, and enforceability of these Terms of Service, or the rights and obligations of you or Company in connection with your use of the Site, shall be governed by, and construed in accordance with, the laws of the State of Georgia, U.S.A., without giving effect to the conflict of laws rules thereof. The parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Augusta, GA (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Augusta, GA for any litigation other than small claims court actions. In the event of litigation relating to these Terms of Service, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial.
SURVIVAL. All sections of these Terms of Service which by their nature are designed to survive expiration or termination of these Terms of Service or your use of the Site shall survive any applicable expiration or termination.