Terms of Service
1. Use of Our Service.
- Overview. The Service is a place that enables Users to learn about FUNKE’s restaurants, including our restaurant locations, food offerings, menu items, and history. Our Service also enables Users, via links to third party providers, to arrange to make dining reservations at our restaurants. By enabling users to find, view, and learn about our restaurants, FUNKE’s goal is to generate a community of enthusiasts who enjoy our cuisine and cocktails, tell their family and friends about their dining experience, and establish a customer relationship with us for many years.
FUNKE grants you permission to use the Service as set forth in this Agreement, provided that: (i) you will not copy, distribute, or disclose any part of the Service in any medium; (ii) you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose; (iii) you acknowledge, accept and agree that there are certain health and safety risks involved in utilizing our content, and that you accept such risks, and (iv) you will otherwise comply with the terms and conditions of this Agreement.
- Eligibility. Use of the Service is void where prohibited. This Service is intended solely for Users who are eighteen (18) years of age or older, and any registration, use or access to the Service by anyone under 18 is unauthorized, unlicensed, and in violation of this Agreement. FUNKE may delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service) for any reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 18.
2. Term and Termination
This Agreement shall remain in full force and effect while you use the Service.
FUNKE may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in FUNKE’s sole determination, you violate any of terms of this Agreement, including the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Service; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Service; or, (vi) bypassing the measures we may use to prevent or restrict access to the Service, including, but not limited to, registering for the Service with an email address that is not rightfully yours.
- Email Address. When you sign up to receive our newsletter, you will be asked to supply your email address. You agree that the email address you submit is your own, and you agree not to use the email address of another person at any time. You agree to notify FUNKE immediately if you suspect any unauthorized use of your email address by FUNKE. Although FUNKE will not be liable for your losses caused by any unauthorized use of your email address, you shall be liable for the losses of FUNKE or others due to such unauthorized use.
- Communications and Notifications. By providing FUNKE with your email address, you consent to our use of the email address to send you Service-related notices, including, among other things, notices required by law, in lieu of postal mail. We may also use your email address to send you other messages, including changes to FUNKE features, marketing messages, and special offers. If you do not want to receive such email messages, you may opt out by clicking on the “unsubscribe” link at the bottom of the email, sending us an email at firstname.lastname@example.org or by sending mail to the following postal address:
9388 S. Santa Monica Blvd.
Beverly Hills, CA 90210
Opting out may prevent you from receiving email messages regarding updates, improvements, or special offers.
4. Usage Permissions and Restrictions.
- Personal Use. The Service is for the personal use of Users only. The Service may not be used in connection with any commercial endeavors except those that are specifically endorsed or expressly approved in writing by FUNKE.
- Restrictions. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to the FUNKE servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. Illegal and/or unauthorized use of the FUNKE Service, including collecting and/or harvesting personally identifiable information, including usernames and/or email addresses of Users, by electronic or other means for the purpose of sending spam, unsolicited email or unauthorized framing of or linking to the website is prohibited. You agree not to use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. Appropriate legal action will be taken for any illegal or unauthorized use of the FUNKE Service.
5. License Grant.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, personal license to use the Service. FUNKE reserves all rights not expressly granted herein in the Service and the Content (as defined below). FUNKE may terminate this license at any time for any reason or no reason.
6. Proprietary Rights.
- Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
- Content. Except for your User Content, the Service and its materials, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, menus, audio, videos and music (the “Content”), and all Intellectual Property Rights related thereto, are the exclusive property of, or licensed to, FUNKE and its affiliates and licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
- Ideas and Comments. You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place FUNKE under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to you. You acknowledge that, by acceptance of your submission, FUNKE does not waive any rights to use similar or related ideas previously known to FUNKE, or developed by its employees, or obtained from sources other than you.
- Trademarks. “FUNKE”, “FUNKE LA”, “FUNKE BY EVAN FUNKE”, and other Service graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of FUNKE and/or its licensors and affiliates. FUNKE’s trademarks and trade dress may not be used in connection with any product or service that is not FUNKE’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits FUNKE. All other trademarks not owned by FUNKE that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by FUNKE.
7. User Content and User Content Responsibility.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined above), rights of publicity and privacy. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
- Responsibility for User Content. FUNKE takes no responsibility and assumes no liability for any User Content that you or any other Users or third parties post or send over the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. In the event that you elect to download User Content, FUNKE recommends that you only download or access files from a trusted source and implement security measures to scan downloaded files for contaminants. FUNKE disclaims any responsibility or liability relating to your access to or downloading of User Content. FUNKE is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree that FUNKE shall not be liable for any damages you allege to incur as a result of such User Content.
- Additional Representations and Warranties. You shall be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following: (i) You are at least 18 years of age, or if you are under 18 years of age you are either an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement; and (ii) Your User Content and FUNKE’s use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
8. Informational Purpose.
The Service, and the Content therein, is for informational purposes only. All Content is subject to modification, change and/or being withdrawn at any time in the sole discretion of FUNKE and its affiliates. Reliance on any information provided by FUNKE, FUNKE employees, others appearing on the Service at the invitation of FUNKE, or other visitors to the Service is solely at your own risk. Consuming certain food and beverage items may increase your risk of foodborne illness especially if you have certain medical conditions.
9. DMCA Copyright Policy.
You may not post, modify, distribute, or reproduce in any way, any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of FUNKE to terminate privileges of any User who repeatedly infringes the copyright rights of others upon receipt of prompt notification to FUNKE by the copyright owner or the copyright owner’s legal agent.
Without limiting the foregoing, if you believe that your work has been copied and posted on the FUNKE Service in a way that constitutes copyright infringement, please provide us with the following information:
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(ii) a description of the copyrighted work that you claim has been infringed;
(iii) a description of where the material that you claim is infringing is located on the FUNKE Service;
(iv) your address, telephone number, and email address;
(v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please provide this information to:
Copyright Notices – FUNKE
9388 S. Santa Monica Blvd.
Beverly Hills, CA 90210
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying FUNKE and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with FUNKE’s rights and obligations under the Digital Millennium Copyright Act (“DMCA”), including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, FUNKE has adopted a policy of terminating, in appropriate circumstances and at FUNKE’s sole discretion, members who are deemed to be repeat infringers. FUNKE may also, at its sole discretion, limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Counter-Notice. If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your User Content, you may send a counter-notice to FUNKE’s copyright agent containing the following information:
(i) your physical or electronic signature;
(ii) identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
(iii) a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content; and
(iv) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notice of the alleged infringement.
If a counter-notice is received by FUNKE’s copyright agent, FUNKE may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the User Content provider, Member, or User, the removed User Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, in FUNKE’s sole discretion.
10. Mobile Use
Though you may access the Service via a mobile device, FUNKE shall not be liable for any delay in performing or failure to perform any obligation hereunder by circumstances beyond our reasonable control including (without limitation) any technical problems beyond the control of FUNKE such as (for example) defects, congestion or failures of capacity or otherwise in the public data or telephone or mobile carrier network or caused by atmospheric interference, your mobile device being turned off for an extended period of time so that messages are not retained, or your being unable to obtain mobile network coverage.
FUNKE has implemented commercially reasonable technical and organizational measures designed to secure your personal information and User Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information and User Content for improper purposes. You acknowledge that you provide your personal information at your own risk.
13. Third-Party Websites, Advertisers or Services.
Your dealings with or participation in promotions of advertisers to which you opt-in and/or find on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that FUNKE shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
Similarly, to the extent there are links to third party products or services contained in the Content on the Service, Your resultant dealings with such third party providers which you find on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such providers, and You agree that FUNKE shall not be responsible for any loss or damage of any sort relating to your dealings with such providers.
- Investigations. We may investigate any potential or suspected violations of this Agreement, additional policies, security protocols or best practices, third party rights, applicable law, any actions or any other misconduct or potential abuse on or through the Service, as well as any attempted actions concerning any or all of the foregoing. When assessing whether and which measure(s) to take against a User, we will take the legitimate interests of the User into account and shall, in particular, consider if the user is responsible for the misconduct.
- Remedies. We may take any actions we deem appropriate in our reasonable discretion for the conduct described in Section 14a. Without limiting other remedies, these actions may include: limiting, or temporarily or permanently suspending, or terminate our services; limiting, or temporarily or permanently suspending, or terminate your Member Account; restrict or prohibit access to, and your activities on, our Site and/or Service; remove listings; require you to edit listings; cancel sales; delay or remove User Content; withhold payments; charge you for amounts you owe or costs we incur due to your misconduct (including, without limitation, any costs associated with collection or chargebacks, and any replacement costs, and any related legal fees we incur in connection with the foregoing), and take technical and legal steps to keep you from using our Site and/or Services.
- Reporting. We reserve the right to report any activity that we believe to be illegal or otherwise in contravention of this Agreement and we will respond to any verified requests relating to a criminal investigation (i.e. a subpoena, court order or substantially similar legal procedure) from law enforcement or regulatory agencies, other government officials or authorized third-parties.
You agree to defend, indemnify and hold harmless FUNKE and its subsidiaries, agents, and other affiliated companies, and the employees, contractors, agents, officers and directors of each, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
(i) your use of and access to the Service, including any Content therein and any data transmitted or received by you;
(ii) your purchase or use of any products through the Service;
(iii) your placement or transmission of any message, content, information, software or other materials through the Service;
(iv) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above;
(v) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights;
(vi) your violation of any law, rule or regulation of the United States or any other country;
(vii) any claim or damages that arise as a result of your User Content or any information that is submitted by you or via your account;
(viii) any claim or penalty from a taxing authority related to your activities on the Service; or
(ix) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
16. No Warranty.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FUNKE, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
THE FUNKE SERVICE MAY CONTAIN LINKS TO THIRD-PARTY WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY FUNKE. FUNKE HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, THE CONTENT, POLICIES, OR PRACTICES OF ANY THIRD-PARTY WEBSITES. YOU EXPRESSLY RELIEVE FUNKE FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE OR SERVICES.
FUNKE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH FUNKE SERVICE AND FUNKE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
17. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FUNKE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. FUNKE IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER OR OTHER USER OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL FUNKE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FUNKE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY
(I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
(II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, INCLUDING DEATH, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, INCLUDING VIEWING, PLAYING OR DOWNLOADING ANY MATERIALS ON OR FROM THE SERVICE, OR OTHERWISE IN CONNECTION WITH THE SERVICE;
(III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN;
(IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE;
(V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY;
(VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR
(VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND/OR
(VIII) ANY AND ALL RISKS AND RESPONSIBILITY OF INJURY, PHYSICAL HARM OR DEATH ARISING IN CONNECTION WITH ANY EQUIPMENT. IN NO EVENT SHALL FUNKE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO FUNKE HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FUNKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
- Informal Resolution. If a dispute arises between You and FUNKE, you agree to first provide FUNKE with notice of your complaint via email to email@example.com so that the parties may attempt to resolve the dispute informally within sixty (60) days from the date your complaint is received.
- Arbitration Agreement.
With the exception of class actions, small claims court filings, or actions for preliminary injunctive relief (as further discussed below), any other dispute of any kind between you and FUNKE arising under this Agreement or in connection with your use of the Service (“Dispute(s)”), if unresolved through the informal process outlined above, will be resolved by binding arbitration in Los Angeles County, California. If you are an individual consumer using the Service primarily for personal reasons (“Individual Consumer”), as opposed to an individual accessing the Service for business purposes, and you are located within the United States, you may alternatively select your state of residence as the place of arbitration, but all other actions remain subject to the venue and choice of law provisions in Section 18b.
The arbitrator presiding over a Dispute will be a retired judge or justice of any state or federal court with substantial experience in the subject matter relevant to the matter in dispute and will follow California law, exclusive of conflict or choice of law rules, in adjudicating the dispute. BY AGREEING TO ARBITRATE, YOU WAIVE ANY RIGHT YOU HAVE TO A COURT OR JURY TRIAL.
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act.
The parties agree that the arbitrator presiding over a Dispute will be instructed, whenever practicable, to resolve threshold legal issues by way of motions filed by the parties. The parties also agree that they will follow JAMS’ streamlined arbitration rules and procedures then in effect in arbitrating any Dispute, except to the extent that the JAMS rules are inconsistent with this Section 18c including the class action waiver described below. The JAMS rules are available at www.jamsadr.com.
If you are an Individual Consumer and the claim you wish to assert against us is for less than $10,000 then, at your election,
(i) the arbitration may proceed in-person, by telephone, or by written briefs or
(ii) you may in lieu of arbitration bring your claim in small claims court.
Both parties reserve the right to seek a preliminary injunction or temporary restraining order from a federal or state court located in San Francisco County, California. However, after such request for relief has been adjudicated by such court, the remainder of the Dispute will be resolved by binding arbitration as set forth herein.
(2) Class Action Waiver.
IF YOU ARE A NEW USER OF THE SERVICE, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION ("OPT-OUT") BY EMAILING US AN OPT-OUT NOTICE TO INFO@FUNKELA.COM ("OPT-OUT NOTICE") OR VIA U.S. MAIL TO: Funke, Attn: Arbitration Opt-Out, 9388 S. Santa Monica Blvd., Beverly Hills, CA 90210. THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS FOR THE FIRST TIME. IF YOU ARE NOT A NEW USER OF THE SERVICE, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
19. Availability and Use Outside of the United States.
The Service is controlled, offered and operated from facilities in the United States. FUNKE makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals located in the United States. Notwithstanding the foregoing, FUNKE retains all rights, including all Intellectual Property Rights, to the Service and the Content therein, throughout the world.
20. Notification Procedures.
FUNKE may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by FUNKE in our sole discretion. FUNKE reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
21. Notice to California Users.
Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
a. Entire Agreement. This Agreement, together with any other legal notices and agreements published by FUNKE via the Service, shall constitute the entire agreement between you and FUNKE concerning the Service.
b. No Waiver. FUNKE’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision, and no waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
c. Headings. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
d. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by FUNKE without restriction.
e. Severability. If any provision of this Agreement is unlawful, void or unenforceable by a court of competent jurisdiction, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
If you have any questions regarding this Agreement, please contact us at firstname.lastname@example.org.