These Komeeda Terms and Conditions (this “Agreement”) are between Komeeda LLC, a New York Limited Liability Company (“Komeeda” or “Us”) and diner (the “Diner” or “You”). This Agreement governs access to and the use of the Komeeda website and all services offered thereon (the “Komeeda Website” or the “Services”).
Komeeda is an online platform which provides its Diners (each, a “Diner”) with access to unique and interactive curated dining experiences (“Events”) hosted by our restaurant Providers (“Restaurant Providers”). The Services can be used to find information about Events and purchase reservations (each, a “Reservation”) to attend.
BY USING THESE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. ANY NEW FEATURES OR TOOLS WHICH ARE ADDED TO THE CURRENT SERVICES WILL ALSO BE SUBJECT TO THIS AGREEMENT. YOU CAN REVIEW THE MOST CURRENT VERSION OF THIS AGREEMENT AT ANY TIME ON THE KOMEEDA WEBSITE. KOMEEDA RESERVES THE RIGHT TO UPDATE AND CHANGE THIS AGREEMENT BY POSTING UPDATES TO THESE TERMS AND CONDITIONS ON THE KOMEEDA WEBSITE. YOU ARE ADVISED TO CHECK THIS AGREEMENT FROM TIME TO TIME FOR ANY UPDATES OR CHANGES THAT MAY IMPACT YOU.
THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION.
Diner Accounts and Reservations.
An “Account,” as used herein means the electronically stored data designating the Diner’s username, password, contact information, payment information, usage history, and other information that may be created at any time during use of the Services.
A “Reservation” is a revocable license to attend an Event, as defined herein. Both Komeeda and our Restaurant Providers reserve the right to revoke the license to attend the Event at any time for any reason, or no reason at all. In case of such revocation, the Diner’s sole recourse is the refund of the money paid to Komeeda for the revoked Reservation.
Diners. To access most of the functionality of the Services and to make Reservations at our Events, you must sign up as a Diner of Komeeda. To become a Diner you must create an account (an “Account”) and pay the reservation price associated with our Events.
Accuracy of Information.
During the Diner sign-up and Account creation process, or during the checkout process, we will request certain information which will be associated with your Account (or, in the case of a Non-Diner, your Reservation), including your name, email address and phone number (optional). Additionally, in order to make payments through the Services, you must provide the information requested by our payment processor, typically your name, credit card information and mailing address. You represent and warrant that all information you provide to Komeeda is complete, accurate and personal to you and that you will update such information as necessary to maintain its completeness and correctness. Violations of these terms, or any other terms in this Agreement may result in cancellation of your Account or Reservation or other measures as deemed appropriate by Komeeda in its sole discretion.
To use the Services, you must be at least 18 years old. If you are incapable of entering into a binding contract in the jurisdiction in which you live, whether due to age or any other reason, you are prohibited from creating an Account or using the Services. At certain Events to which Reservations are offered on the Services, alcohol may be served. Our Restaurant Providers are required by law to request proof that you are at least 21 years of age prior to serving you any alcohol.
As a Diner, you agree to use the Services in compliance with this Agreement and the Komeeda Acceptable Use Policy.
Unauthorized Use & Access.
Diner will prevent unauthorized use of the Services. Diner will promptly notify Komeeda of any unauthorized use of, or access to, the Diner’s Account or the Services. Each Diner is responsible for maintaining the confidentiality of such Diner’s password.
Diner will not (i) sell, resell, or lease the Services to Third Parties or (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury. Diner, not Komeeda, is responsible for Diner’s compliance with all local, state and federal laws.
Communication Setting Management.
Diner is responsible for maintaining all “opt-in/out” settings for communications from or via the Services. Komeeda will only send communications that the Diner has consented to receiving via Diner’s communication settings selections. Communications settings can be changed within the Services or by contacting firstname.lastname@example.org.
Updated Contact Information.
If Diner provides contact information to Komeeda, that is the information Komeeda will have on file for the Diner. To update that information (for example, to change an email address), please update your Account Settings within the Services or contact us at email@example.com.
Third Party Requests.
“Third Party Request” means a request from a third party for records relating to any Diner’s use of the Services including information in or from a Diner’s Account or other activities and transactions on the Services or at Events. Third Party Requests may include search warrants, court orders or subpoenas, or any other request for which there is written consent from Diner permitting a disclosure.
Diner is responsible for responding to Third Party Requests via its own access to Diner’s information and accounts. Diner will seek to obtain information required to respond to Third Party Requests and will request assistance from Komeeda only if it cannot obtain such information despite diligent efforts.
Komeeda will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Diner of Komeeda’s receipt of a Third Party Request; (B) comply with Diner’s commercially reasonable requests supporting its efforts to oppose a Third Party Request; and (C) provide Diner with information or tools required for Diner to respond to the Third Party Request (if Diner is otherwise unable to obtain the information). If Diner fails to promptly respond to any Third Party Request, then Komeeda may, but will not be obligated, to do so.
All Diners have access to unique, privately curated dining experiences. Diners may purchase Reservations for themselves and their Guests by using the Services. Each Event is different, but there are some attributes common to all of them.
Each Event is hosted by a Restaurant Provider. The Restaurant Provider provides Komeeda with certain information regarding the space the Event will be hosted in, the prix fixe menu for the Event (the “Menu”), and other supplementary information about the Restaurant Provider and the Event. All such information will be displayed on the Event’s page on the Komeeda Website (the “Event Page”). Restaurant Providers are solely responsible for the dining and hospitality offered at the Event and the information displayed on the Event Page.
Each Event will take place at the location designated by the Restaurant Provider, typically a private dining room or a secluded area within the restaurant.
Each Event has a prix fixe Menu which can be viewed at the Event Page. The Menu is selected by the Restaurant Provider, and may be subject to change at the discretion of the Restaurant Provider. Please be advised that you are obligated to notify the Restaurant if you have any food allergies or dietary restrictions, and that, depending on the Menu and availability, the Restaurant may not be able to accommodate special requests.
Each Diner is invited to reserve seats at such Event by purchasing a Reservation. Reservations may be made for the Diner plus one or more guests (each, a “Guest”), depending on the Event. Seating at each Event is limited in advance, and once the maximum number of Reservations is reached, we will be unable to accept Reservations for the sold-out Event. The price for one seat at the Event (the “Seat Price”) is determined by the Restaurant Provider. The full Seat Price for each Diner and Guest is paid at the time of Reservation. The Seat Price includes sales tax and gratuity. Seat price does not include consumed beverages not disclosed on the event page or a la carte items ordered by Diners and Guests, or service fees (such as corking fees) which may be charged by the Restaurant Provider and added to the final bill (the “Final Bill”) at the conclusion of the Event.
Cancellation and Refunds.
Each Event is uniquely curated, with a limited number of seats. Komeeda incurs certain costs with respect to each Event, and is required by its Restaurant Providers to provide minimum attendance numbers. As such, our cancellation policy is as follows:
If any Diner, or such Diner’s Guests, is unable to attend an Event, the Diner must notify us as soon as practicable. Reservations are not refundable within three (3) calendar days of an Event. However, the Diner may transfer the Reservation to a replacement diner (“Replacement Diner”) of such Diner’s choice, provided that the Diner notifies us of the name and email address of each Replacement Diner by contacting us at firstname.lastname@example.org. By agreeing to become a Replacement Diner, such Replacement Diner is bound to this Agreement as a Diner.
If a Diner cancels a Reservation less than three (3) calendar days prior to the Event, or fails to show up for the Event, the Reservation is not refundable. Each Diner is solely responsible for Reservations such Diner makes, including Reservations for their Guests.
Cancelled Events. It is rare, but for reasons beyond our control, our Restaurant Providers or Komeeda may need to cancel an Event. If an Event is cancelled, we will notify each Diner and Guest with Reservations to such Event as soon as practicable and will issue a full refund of the Reservation.
Cardholders should contact Komeeda directly to handle refunds, chargebacks (disputes), and customer service needs.
Agreement Between Diner and Restaurant Provider.
THE SERVICES FACILITATE THE SALE OF PRIX FIXE RESTAURANT RESERVATIONS, HOWEVER, KOMEEDA IS NOT A PARTY TO THE RESERVATION. EACH TRANSACTION IS A DIRECT LEGAL CONTRACT BETWEEN THE DINER AND THE RESTAURANT PROVIDER HOSTING THE EVENT.
All Reservations include at least the following terms:
Promises of Restaurant
Restaurant Provider agrees to provide the meal described in the prix fixe Menu on the Event Page, and to provide a curated meal meeting the acceptable standards of the restaurant industry.
Restaurant Provider agrees that 100% of the Seat Price is paid by Diner as a Reservation to the Event. Certain items on the Menu may change at the discretion of the Restaurant Provider (for example, due to availability), but the Seat Price will not increase.
Restaurant Provider agrees that Diner and Guests may purchase beverages or a la carte items not included on the Event Page at additional cost to Diner, which will be added to the Final Bill due at the conclusion of the Event.
Restaurant Provider is solely responsible for the experience of Diners and their Guests at the Event and hold Komeeda and its affiliates, representatives, and assigns harmless from any liability which may arise therefrom, and agrees to indemnify and defend Komeeda in the event of any suit arising therefrom.
Restaurant Provider will maintain adequate general liability and all-risk insurance coverage.
Promises of Diner
Diner agrees that the Reservation covers 100% of the Event price including tax and gratuity. Any consumed beverages not included in the prix-fixe menu or a la carte items purchased by Diner during the Event and any applicable taxes, gratuities or service fees charged by Restaurant Provider will be an additional cost to the Diner at the conclusion of the Event.
Diner agrees to pay any supplemental bills to the Restaurant Provider at the conclusion of the Event.
Diner agrees that if any part of the Event is unsatisfactory, Diner’s sole recourse is against the Restaurant Providers, and not Komeeda.
Diner agrees that Diner and such Diner’s Guests will conduct themselves in an orderly manner and in full compliance with applicable laws and the house rules of the Restaurant Provider.
Diner agrees that Diner is solely responsible for any damage caused by such Diner or such Diner’s Guests to the property of the Restaurant Provider and holds Komeeda and its affiliates, representatives and assigns harmless from any liability which may arise therefrom, and agrees to indemnify and defend Komeeda in the event of any suit arising therefrom.
Diner agrees that Diner is responsible for notifying Restaurant of any food allergies or dietary requirements, and understands that Restaurant may not be able to accommodate special requests.
Payments made upon purchasing a Reservation are processed by our payment processor. A small transaction fee is charged by our payment processor for performing this service, which is already included with our commission structure and will be automatically deducted from the collective payout. RSVPs processed through the Komeeda platform includes all disclosed menu items (food & drink), gratuity and local sales tax. RSVPs processed are subject to a commission charge of 20.3% of the subtotal, accounting for a suggested gratuity of 18% and local (New York City) sales tax of 8.875%. Reservation payments are released by Komeeda two business days after the conclusion of the experience. The proceeds of the Reservations for any Event are remitted to the corresponding Restaurant Provider.
You are responsible for paying any applicable additional fees or taxes associated with your use of the Services. We will never collect any additional fees or payments without giving you a chance to review and accept them.
Komeeda uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells.
Term and Termination.
This Agreement will remain in effect until the earlier to occur of: (i) Diner requests deletion of such Diner’s Account; (ii) payment of a Final Bill by a Replacement Diner at the conclusion of the last Event to which such Replacement Diner has purchased a Reservation; or (iii) termination otherwise in accordance with this Agreement.
Komeeda reserves the right to discontinue the Services in their entirety at any time and without prior notice. Komeeda may cancel or suspend a Diner Account if payment has not been made when due, with or without notice. If any Diner engages in any activity that is harmful to Komeeda, our other Diners and Restaurant Providers, our other Diners, or any third parties, Komeeda will have the right to terminate or suspend such Diner’s Account or Reservations, or take any other necessary action immediately at Komeeda’s sole discretion and without prior notice.
If this Agreement terminates: the rights granted by Komeeda to Diner will cease immediately (except as set forth in this section); and Komeeda may delete any data relating to Diner’s Account. The following sections will survive expiration or termination of this Agreement: 2 (Third Party Requests), 6 (Term and Termination), 7 (Intellectual Property Rights), 8 (Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), 12 (Miscellaneous) and the Komeeda Acceptable Use Policy.
Intellectual Property Rights.
Reservation of Rights. THIS AGREEMENT DOES NOT GRANT KOMEEDA ANY RIGHTS TO ANY INFORMATION UPLOADED BY DINER OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED THEREIN EXCEPT FOR THE LIMITED RIGHTS NEEDED TO RUN THE SERVICES, AS EXPRESSLY SET FORTH IN THIS AGREEMENT. This Agreement does not grant Diners (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Komeeda trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights. You acknowledge and agree that the source and object code of the Services and the format, directories, queries, algorithms, structure and organization of the Services are the Intellectual Property and proprietary and confidential information of Komeeda and its affiliates, licensors and suppliers. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by Komeeda.
Recording Events. Diners and their Guests consent to Komeeda’s right to take photographs and/or video and audio recordings at Events and consent to the use of such photographs, video footage and audio footage from such Events for promotional purposes on the Komeeda Website or any other marketing purposes for Komeeda’s benefit.
Restaurant Provider Intellectual Property. Restaurant Providers who agree to host Events and allow Komeeda to feature their restaurant in its listings grant to Komeeda the Intellectual Property Rights necessary to run the Services, including, without limitation, the right to use the Restaurant Provider’s name, description of the Restaurant Provider’s business, description of the Event, the Restaurant Provider’s Menu, and other similar information. Notwithstanding the foregoing, Restaurant Providers may request the removal or modification of any information which is displayed under such Restaurant Provider’s Event. Komeeda is granted a limited license to use Restaurant Provider’s logo and/or trademarks for the promotion of the Event, and Restaurant Provider will upload a quality image to Komeeda’s site for this purpose.
Suggestions. Once submitted, feedback, comments and suggestions regarding the Services become the property of Komeeda. We may, at our discretion and for any purpose, use, modify, and incorporate into our products and services, license and sublicense any feedback, comments, or suggestions Diners send Komeeda without any obligation to Diners. We may use comments to promote Komeeda’s business.
Open Source Code. The Services may incorporate certain independent code that is licensed under open source licenses (“Open Source Code”). To the extent that the Services are licensed to you, any Open Source Code incorporated therein is licensed to you in accordance with the applicable open source licenses. To the extent that this Agreement conflicts with any of those open source licenses, the conflicting terms and conditions will not apply to the corresponding Open Source Code.
Copyrighted Materials; Copyright Notice. All content and other materials available through the Services, the Komeeda logo, design, text, graphics, and other files, and the selection, arrangement and organization thereof, are either owned by Komeeda or are the property of Komeeda’s licensors and suppliers. Except as explicitly provided, neither your use of the Services nor this Agreement grant you any right, title or interest in or to any such materials.
DMCA Policy. If you have evidence, know, or have a good faith belief that your intellectual property rights or the intellectual property rights of a third party have been violated by material made available in the Services, and you want Komeeda to delete, edit, or disable the material in question, you must provide Komeeda with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Komeeda to locate the material; (d) information reasonably sufficient to permit Komeeda to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Komeeda’s designated agent at:
Attn: Copyright Agent
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. To the fullest extent permitted by law, except as expressly stated in this Agreement, Komeeda makes no warranty of any kind, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use or non-infringement and any warranties arising out of the course of dealing or usage of trade. Your use of the Services is at your own risk, and Komeeda makes no warranty that the Services will meet your requirements or be available on any uninterrupted, secure, or error-free basis, or operate at any particular speed. Komeeda makes no representations about information uploaded or posted by Diners or Restaurant Providers, whether in respect of an Event, a review or comment by any Diner, or any other matter. All information submitted to the Services, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom that information originated. Komeeda is not responsible for the accuracy, completeness, appropriateness, or legality of any information provided by any Diner or Restaurant Provider. Komeeda has no responsibility or liability for any failure of the Services to store data, information, content, or files, the deletion of data, information, content, or files stored on the Services, or for the corruption of or loss of any data, information, content, or files stored on the Services.
RESTAURANT PROVIDERS ARE SOLELY RESPONSIBLE FOR THE EVENTS THEY HOST AND THE FOOD THEY SERVE. KOMEEDA HAS NO RESPONSIBILITY OR LIABILITY FOR THE ACTIONS OR OMISSIONS OF ANY OF ITS RESTAURANT PROVIDERS, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY CLAIMS ARISING OUT OF EVENTS WHICH OCCUR AT A RESTAURANT PROVIDER EVENT TO WHICH KOMEEDA HAS SOLD RESERVATIONS.
Third Party Services.
If a Diner uses any third-party service with the Services, (a) such third party service may access or use Diner’s information; (b) Komeeda will not be responsible for any act or omission of the third party, including the third party’s use of Diner’s information; and (c) Komeeda does not warrant or support any service provided by the third party.
Links to Third-Party Websites or Resources. The Services may contain links to third-party websites or resources, including without limitation websites provided by Restaurant Providers. Komeeda provides, or allows display of, these links only as a convenience and is not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites.
Indemnification. Diner will indemnify, defend, and hold harmless Komeeda, its officers, directors, employees and agents from and against all claims, disputes, demands, liabilities, damages, losses, costs and expenses (including, without limitation, settlement costs and reasonable attorneys’ fees) arising out of any third party claim (including without limitation claims by Restaurant Providers) regarding: (i) any act or omission by such Diner or such Diner’s Guest at an Event; (ii) information submitted to the Services by Diner; and (iii) Diner’s use of the Services in violation of this Agreement, the Komeeda Acceptable Use Policy, any law or the rights (including contractual rights) of any third parties.
Limitation of Liability.
Limitation on Indirect Liability. KOMEEDA WILL NOT BE LIABLE FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES EVEN IF KOMEEDA KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Limitation on Amount of Liability. KOMEEDA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT OF FEES COLLECTED BY KOMEEDA IN RESPECT OF TRANSACTIONS TO WHICH THE DINER MAKING THE CLAIM(S) HEREUNDER WAS A PARTY DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY; OR (II) $100. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS SECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KOMEEDA AND DINER.
Terms Modification. Komeeda may revise this Agreement from time to time and the most current version will always be available to view on the Komeeda Website. If a revision, in Komeeda’s sole discretion, is material, Komeeda will notify you (for example to the email address you provided). You are responsible for checking this Agreement and the Komeeda Acceptable Use Policy regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If Diner does not agree to the revised Agreement terms, Diner must stop using the Services.
Entire Agreement. This Agreement constitutes the entire agreement between you and Komeeda with respect to the subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement
Controlling Law and Jurisdiction. These Terms and your use of the Services 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 New York County, New York or a United States District Court, Southern District of New York located in New York, 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. DINER WAIVES ALL RIGHTS TO CLASS-ACTION SUITS. ACTION FOR DAMAGES MUST FOLLOW THE PROVISIONS SET FORTH IN THE SECTION ON DISUPTE RESOLUTION BELOW
Dispute Resolution .You and Komeeda agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Application (collectively, "Disputes") will be settled by binding arbitration, except that each party retains 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. You acknowledge and agree that you and Komeeda are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Komeeda otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
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 18007787879.) 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 and a separate form for California residents) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York 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 Komeeda 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 Komeeda 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. Komeeda 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, Komeeda 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 Komeeda 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) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of Komeeda'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 Komeeda 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).
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, illegal, unenforceable or in conflict with any law, the unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of this Agreement will remain in full effect.
Notice. Notices may be sent electronically, must include “LEGAL NOTICE” in the subject line, and are deemed given when received. Notices to you may also be sent to the applicable email address you provided, and are deemed given when sent. Notices to Komeeda must be sent to:
Waiver. A waiver of any default is not a waiver of any subsequent default.
Assignment. Diner may not assign or transfer any part of this Agreement without the written consent of Komeeda. Komeeda may not assign this Agreement without providing notice to Diner, except Komeeda may assign this Agreement to an affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
No Agency. Komeeda and Restaurant Providers are not legal partners or agents, but are independent contractors.
Publicity and Likeness. Komeeda may film, photograph or make audio recordings of certain Events. Diners and their Guests consent to such recordings and grant Komeeda from using them for marketing purposes on the Komeeda website, advertisements and social media accounts.
Force Majeure. Neither Komeeda nor Diner will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Export Restrictions. The Services originate in the United States, and are subject to United States export laws and regulations. The Services may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Services may be subject to the import and export laws of other countries. You agree to comply with all United States and applicable foreign laws related to use of the Services.
Acceptable Use Policy.
Komeeda is proud to offer its Diners the opportunity to purchase Reservations for exclusive dining experiences, and wants all of its Diners to enjoy the benefits such a marketplace can provide. While we do not want to place undue restrictions on the ways in which you can use the Services, we must ask that you use them responsibly.
As a condition to our provision of the Services, you must agree to refrain from any actions which could be harmful to Komeeda, other Diners, or any third parties. In particular, you must never use the Services, nor attempt to use the Services, to do any of the following:
Komeeda reserves the right to monitor the Services and investigate suspected violations of this Acceptable Use Policy, and to choose, in its sole discretion, how to respond to violations, including without limitation: suspension or termination of access to the Services, banning IP addresses, deletion of the offending data or files, notification of the relevant authorities or prosecution.
Komeeda Referral Program
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING THIS WEBSITE AND PARTICIPATING IN THE "FOODIE $5" REFERRAL PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS BELOW. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE, FROM TIME TO TIME IN OUR SOLE DISCRETION. WE WILL NOTIFY YOU OF AMENDMENTS TO THESE TERMS AND CONDITIONS BY POSTING THEM TO THIS WEBSITE. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT ACCESS THIS WEBSITE.
To participate and become eligible for a $5 dining credit, you must refer new diners to Komeeda through the offer links available at komeeda.com/invite.
To qualify, the referred person must be: 1) a new diner of Komeeda, 2) first enter komeeda.com through a referral link created on the Komeeda invite page, and 3) sign up and become an approved diner of Komeeda. Diners are approved at the sole discretion of Komeeda.
Komeeda reserves the right to cancel a referring diner’s dining credit if it determines, in its sole discretion, that a referring diner has violated these terms, including through any fraudulent or misleading referral activity (for example, by referring fake people to diners, using false names, using multiple identities, email accounts or email addresses, impersonating another person, or otherwise providing false or misleading information) or if Komeeda terminates the referring customer’s account for any reason.
Referring customers may also be liable for civil and/or criminal penalties under applicable law. Any other abuse of this program (including, but not limited to, hijinks and tomfoolery), as determined by Komeeda in its sole discretion, may result in the rescission of the referring customer’s dining credit and cancellation of the referred customer’s dining credit, as well as a determination that one or both parties are ineligible to participate in this or future offers. Determination of referral eligibility and qualifying purchases, as well as any exceptions, are at the sole discretion of Komeeda. Komeeda reserves the right to verify and adjust offers at any time prior to or following posting and redemption.