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This Terms of Service Agreement (“Agreement”) provides the terms and conditions pursuant to which Jenkins Culinary Resources, LLC, a New Jersey Limited Liability Company (“Jenkins Culinary Resources”) will provide certain research and development, food and beverage photography, videography and related Services (defined herein) to Client. As used in this Agreement, “Client” means a natural person or legal entity (such as a corporation, limited liability company, firm, partnership or other entity recognized at law) who subscribes for and receives the Services, together with such person or entity’s affiliates, subsidiaries, successors and assigns.

 

THE SERVICES ARE OFFERED TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY RECEIVING OR USING ANY OF THE SERVICES, IN WHOLE OR IN PART, CLIENT AGREES TO ENTER INTO THIS AGREEMENT.

 

1. Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Services as herein provided), Jenkins Culinary Resources will provide Client with (i) digital marketing (including review marketing and reputation management) services; and/or (ii) social content generation services (including content generation, distribution, and campaign optimization) (collectively, as applicable the “Services”). The geographic location to which Services will correspond shall be designated and agreed-upon before Services commence. Services for separate locations that require separate strategies will increase fees payable by Client hereunder. In connection with the delivery of the Services, Jenkins Culinary Resources will provide Client with access to detailed reporting for the Services.

Client acknowledges that Jenkins Culinary Resources provides other services to its customers, such as paid advertising services and website development services. Such other services, if applicable to Client, are covered by separate terms of service agreements between Jenkins Culinary Resources and Client and are not covered by this Agreement.

 

2. Term; Authorization. Jenkins Culinary Resources will provide the Services to Client on a specified basis (each period during which Services are provided to Client hereunder is referred to herein as a “Agreement Period”).

 

3. Authorization. Client authorizes Jenkins Culinary Resources to act on Client’s behalf as Client’s research and development, photography, and/or videography provider during the initial Agreement Period and all renewal Agreement Periods, with respect to all Services provided by Jenkins Culinary hereunder.

 

4. Copyright. Ownership of content generated by Jenkins Culinary Resources in connection with the Services transferred from Jenkins Culinary Resources to Client (where permitted by third party licensing arrangements) only after payment in full by Client of all invoices applicable to such content. Jenkins Culinary Resource’s methods of production disclosed by Jenkins Culinary Resources to Client cannot be copied or used by Client except as expressly contemplated by this Agreement in connection with the Services, and any such right shall terminate upon termination of this Agreement unless expressly authorized in writing by Jenkins Culinary Resources. Client acknowledges that, at Jenkins Culinary Resource’s expense, Client’s media may be promoted through online channels. A complete transference of Copyright and usage can be disclosed and followed after full payment of Client Services to Jenkins Culinary Resources and must be stated within Vendor Services Agreement or the like.

 

In providing the Services Jenkins Culinary Resources may utilize and/or make available to Client software owned by third parties and licensed to Jenkins Culinary Resources (“Third Party Software”). Client’s use (where permitted) of Third Party Software is governed by software licenses relating to such Third Party Software. These Terms and Conditions do not modify the terms of any Third Party Software license agreements.

 

5. Fees and Payment.  All payments to Jenkins Culinary Resources for the Services shall be made in available funds no later than 30 days after Client’s receipt of invoice(s), in U.S. Dollars (Canadian Dollars for Canadian Clients) or by credit card (Visa, MasterCard or American Express). Jenkins Culinary Resources may retain and store Client’s payment information, including but not limited to, credit card number and expiration date.  Due to the nature of the Services, all sales for each periodic Agreement Period are non-refundable, except as expressly provided herein. Jenkins Culinary Resources is authorized to charge the agreement renewal fee for upcoming Agreement Period Services to the credit card provided to Jenkins Culinary Resources by Client. Client may change its billing information on written notice to Jenkins Culinary Resources. Invoices, where requested by Client, shall be delivered solely by e-mail to Client’s e-mail notice address provided to Jenkins Culinary Resources.

 

Credit Card customers must pre-pay for at least one month’s Services in advance and will be billed monthly in advance of the Services being provided after conclusion of the applicable pre-payment period.

 

Failure by Client to maintain valid and current payment arrangements with Jenkins Culinary Resources may result in interruption or cancellation of the Services. Such interruption does not relieve Client of the obligation to pay for Services already provided to Client by Jenkins Culinary Resources. If Jenkins Culinary Resources is, or becomes, required by law to deduct or withhold any taxes (including without limited to sales taxes, use taxes, ad valorem taxes, or similar charges or assessments) from amounts due to Jenkins Culinary Resources from Client, then all amounts due from Client shall be increased so that the net amount actually received by Jenkins Culinary Resources after deduction or withholding of any such tax, charge or assessment will equal 100% of the agreed-upon charges.

All amounts not paid by Client shall bear interest at a rate of 1.0% per month (or the highest rate permitted by law, if less). Client agrees to pay all costs of collection (including reasonable attorney’s fees, expert witness fees, court costs, etc.) incurred by Jenkins Culinary Resources arising from or relating to enforcement of its rights against Client.

 

The Client is not entitled to any credits, rebates, discounts (volume or otherwise) or refunds provided to Jenkins Culinary Resources by any third party providers or publishers.

 

6. Termination.

(a) By Client. This Agreement and any renewal agreement arising hereunder may be terminated by Client by delivery to Jenkins Culinary Resources of Client’s intention not to renew at least ten days prior to the end of the then-current Agreement Period. Any termination notice received later than ten days prior to the end of the current Agreement Period shall be effective immediately following the next applicable Agreement Period. Upon termination, Client shall be entitled to payment of Fees for Services performed under any Scope of Work as of the effective termination date.

(b) By Jenkins Culinary Resources. Jenkins Culinary Resources may terminate this Agreement and/or suspend all or any portion of the Services at any time, without notice to Client, in the event Client fails to maintain valid payment information with Jenkins Culinary Resources, or in the event that Client fails to pay for the Services. Jenkins Culinary Resources may terminate this Agreement on at least 10-days written notice to Client in the event that Jenkins Culinary Resources should determine that it will cease providing the same type of Services to all other eligible Clients that were receiving such Services as Client.

Jenkins Culinary Resources may also decline to provide the Services, cancel the Services or to discontinue processing any agreement for Services not yet performed, at any time, and from time to time, in Jenkins Culinary Resources’ sole and absolute discretion, if Jenkins Culinary Resources determines in good faith that Client’s business practices: (i) are illegal, immoral, unethical or reasonably likely to expose Jenkins Culinary Resources or its affiliates to potential criminal, administrative or civil liability, (ii) may result in damage to Jenkins Culinary Resources’ reputation or image; or (iii) present any other issue or concern which Jenkins Culinary Resources determines in good faith constitutes grounds for such termination. If Jenkins Culinary Resources exercises such right to decline or cancel the Services, Jenkins Culinary Resources will provide written notice to Client of such exercise and will refund to Client the unearned portion of any deposits or agreement payments previously paid by Client in the immediately-preceding agreement period, within thirty (30) days after issuing such notice. Upon cancellation of the Services, Jenkins Culinary Resources shall have no further duties or responsibilities except as expressly set forth herein regarding post-termination responsibilities of the parties.

 

(c) Bankruptcy, etc. Either party may terminate this Agreement immediately in the event that the other party becomes insolvent, or the other party makes an assignment for the benefit of creditors, or the other party does not pay its debts as they become due or admits its inability to pay its debts when due, or the other party files or has filed against it a petition under any provisions of the Bankruptcy Act or an application for a receiver, trustee or custodian is made with respect to such Party.

 

(d) Duties on Termination. Upon any termination of this Agreement for any reason, Client shall: (i) discontinue any use, retention, display or distribution of any of the work product or materials provided to Client by Jenkins Culinary Resources hereunder for which ownership has not passed to Client pursuant to Section 4 hereof and delete from all storage servers and devices all such work product or materials; (ii) discontinue all use of Jenkins Culinary Resources’ trademarks, together with all other software of intellectual property owned or licensed by Jenkins Culinary Resources (including Reveal); (iii) delete from all storage servers and devices all work product or materials received under this Agreement for which title has not passed to Client; and (iv) discontinue its use of all Third Party Software if required by the license agreements pertaining to same.

 

Upon termination of this Agreement, Jenkins Culinary Resources shall exercise reasonable efforts to return to Client, delete or destroy (in Jenkins Culinary Resources’ sole and absolute discretion) all Client Data (defined herein) provided by Client in connection with the Services. Due to the impracticability of removal of content from social media forums, content posted by Jenkins Culinary Resources on Client’s behalf during the term of this Agreement and in perpetuity on social media forums, blogs or other electronic services may continue after termination of this Agreement, without the necessity of deletion or discontinuation by Jenkins Culinary Resources. Jenkins Culinary Resources will exercise reasonable efforts to provide Client, on Client’s written request, therefore, with username and password access to third party social media and other electronic accounts established on behalf of Client by Jenkins Culinary Resources. Jenkins Culinary Resources reserves the right to discontinue blog posts and respective social media displaying Client’s social media content after termination of this Agreement should this be in the best interest of Jenkins Culinary Resources.

 

(e) In the event that Jenkins Culinary Resources is in breach or default of any material term of this Agreement, Client must notify Jenkins Culinary Resources in writing of the breach or default and provide Jenkins Culinary Resources with ten days to cure issues brought forth in writing. If Jenkins Culinary Resources fails to cure the breach or default, Client may immediately terminate this Agreement upon written notice.

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7. Client Data; License.

(a) Client is responsible for providing Jenkins Culinary Resources with current and accurate data necessary for Jenkins Culinary Resources to provide the Services. As used herein, “Client Data” shall include, without limitation, client’s website domain name and URL, Client’s business name, address, telephone number(s), facsimile number(s), e-mail addresses and e-mail address lists and related information, social media and website content subject matter, ideas and concepts, artwork and other printed material or data submitted by Client to Jenkins Culinary Resources to enable Jenkins Culinary Resources to provide the Services hereunder. Client hereby grants Jenkins Culinary Resources a royalty-free license during the term of this Agreement and all renewal terms to use the Client Data for purposes of providing the Services.

 

(b) In the course of using the Services, Client may be required to provide Jenkins Culinary Resources personally-identifiable information of Client, including contact information, username and password (“Credentials”). All Credentials submitted by Client in this respect constitute Client Data pursuant to the immediately preceding paragraph. Jenkins Culinary Resources handles personally-identifiable information of its customers with reasonable attention, care and security. Nonetheless, Client, not Jenkins Culinary Resources, shall be responsible for maintaining and protecting Client’s Credentials in connection with the Services. If Client’s Credentials change, Client must notify Jenkins Culinary Resources promptly and keep such information current. Client is solely responsible for any activity using Client’s Credentials, whether or not Client authorized such activity. Client should immediately notify Jenkins Culinary Resources of any unauthorized use of Client‘s Credentials or if Client’s email address, user name or password has been hacked or stolen. Client will notify Jenkins Culinary Resources immediately if Client discovers that any third party is using Client’s Credentials without Client’s consent, or Client discovers any other breach of security pertaining to Client’s Credentials.

 

(c) While Jenkins Culinary Resources may use Client’s customer lists or customer information for purposes of providing the Services, Jenkins Culinary Resources does not sell or distribute to third parties Client’s customer lists or aggregated customer information.

 

(d) In the course of providing the Services, Jenkins Culinary Resources may collect information concerning third parties (such as e-mail addresses, name and other contact information submitted by third parties in reviews) or information concerning third parties provided by Client (such as e-mail addresses and other information pertaining to customers and prospects).  Client acknowledges that all such information, whether collected by Jenkins Culinary Resources from third parties or provided by Client to Jenkins Culinary Resources, may be used by Jenkins Culinary Resources across one or more platforms to perform the Services, including future plans and services not currently provided by Jenkins Culinary Resources but made available to Client at a future time.

 

8. Client Representations and Warranties. Client represents and warrants to Jenkins Culinary Resources that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to Jenkins Culinary Resources for the use contemplated by the Services; (b) the use by Jenkins Culinary Resources of the Client Data for the purposes of providing the Services hereunder does not, and will not, infringe any intellectual property or other rights of any third party or the laws, rules, regulations, orders or treaties of any governmental authority or jurisdiction; (c) the Client Data does not, and will not, infringe upon any trademark, copyright, contract or property rights of any third parties and that Client has paid any and all royalties or other charges to be paid pursuant to the copyright law of the United States, any statute, order or other law, right or contract governing the Client Data; (d) the Client Data does not, and will not, contain any materials which are libelous, defamatory, obscene, or invades the rights of privacy or other rights of any individual; (e) Client’s business activities comply with the applicable laws, rules and regulations of all federal, state and local governmental authorities having jurisdiction over Client; (f) Client has all necessary power and authority to enter into and perform in accordance this Agreement; (g) this Agreement is legal, valid, binding and enforceable against Client; and (h) neither the execution of, nor performance under, this Agreement by Client violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Client.

 

In addition, to the extent that the Client Data consists of e-mail addresses or e-mail address lists, Client represents and warrants to Jenkins Culinary Resources that Client obtained such e-mail addresses or e-mail address lists using legitimate and lawful means and in compliance with all state and federal laws, rules and regulations associated with e-mail marketing activities (including without limitation, gaining all required addressee consents to use e-mail addresses for marketing purposes and providing addressees with any requisite opt-out notifications required by such laws, rules or regulations). 

 

9. Client Indemnification. Client shall indemnify, defend and hold harmless Jenkins Culinary Resources, together with its officers, directors, employees, agents, contractors and permitted assigns from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with: (i) the lawful use of or reliance by Jenkins Culinary Resources on the Client Data in performing the Services under this Agreement, (ii) any breach of or default under the terms, conditions, representations or warranties of this Agreement by Client, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of Client or its employees or agents.

 

10. Express Limited Warranty; Limitations on Liability.

(a) Limited Warranty. Jenkins Culinary Resources shall provide the Services under this Agreement in a professional manner, consistent with generally-accepted standards applicable to the marketing industry in which the Services subside. Due to periodic changes in search engine algorithms and accessibility of open source citations, Jenkins Culinary Resources cannot guarantee search engine result pages or line placement where Client’s business will appear. Nor, any guarantee that Services conducted will produce Client sales or other monetary gains that may impact Client’s business.

 

(b) Representations and Warranties Limited. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SERVICES ARE PROVIDED “AS-IS” AND JENKINS CULINARY RESOURCES DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE SERVICES OR OTHER DATA, REPORTS OR INFORMATION FURNISHED TO CLIENT HEREUNDER. FURTHERMORE, THE SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THE EXPRESS LIMITED WARRANTY SET FORTH IN PARAGRAPH 10(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED.

 

(c) No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of Jenkins Culinary Resources is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of Jenkins Culinary Resources. Furthermore, Client acknowledges that it is the responsibility of Client to verify any information upon which it or any of its employees or agents use, rely on or otherwise take action upon with respect to financial or other consequences.

 

(d) Limitations on Liability. If Jenkins Culinary Resources fails to perform its duties and obligations under this Agreement, and Client can establish that as a direct result thereof, Client has incurred any damages, liabilities, losses, fees, costs or expenses, then Jenkins Culinary Resources’ liability to Client for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the fees that Client has paid for the Services in question during the term of the agreement in question. IN NO EVENT SHALL JENKINS CULINARY RESOURCES OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, ANY ACTION ANY OF THEM TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS CLIENT SENDS TO JENKINS CULINARY RESOURCES OR THE DELAY OR INABILITY TO USE ANY SERVICES, OR DATA FORK’S REMOVAL, MODIFICATION, SUSPENSION OR DELETION OF ANY SERVICES PURSUANT TO ITS RIGHTS UNDER THIS AGREEMENT, IN ALL CASES, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF JENKINS CULINARY RESOURCES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION FOR NON-PAYMENT BY DATA FORK, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.

 

(e) Search Engine Guideline Penalties. Client shall inform Jenkins Culinary Resources of any past or future marketing plans implemented or to be implemented by Client so that Jenkins Culinary Resources may factor such plans into its planning for the Services hereunder. Jenkins Culinary Resources shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to Jenkins Culinary Resources.

 

(f) Third Party Art. From time to time, Client may request Jenkins Culinary Resources to provide photographs, images, infographics, illustrations or other artwork in connection with Jenkins Culinary Resources’ provision of the Services. To the extent that such photographs, images, infographics, illustrations or other artwork are sourced by Jenkins Culinary Resources from one or more third party services and provided to Client as part of the Services, such items constitute “Third Party Art” hereunder. Jenkins Culinary Resources cannot, and does not, guaranty that all Third Party Art is validly-licensed for Client’s intended or actual use. ACCORDINGLY, CLIENT ACKNOWLEDGES AND AGREES THAT IF CLIENT REQUESTS JENKINS CULINARY RESOURCES TO INCLUDE THIRD PARTY ART AS A COMPONENT OF THE SERVICES, CLIENT ASSUMES ALL RISKS ASSOCIATED WITH CLIENT’S USE OF THIRD PARTY ART. CLIENT AGREES TO PERFORM WHATEVER DUE DILIGENCE CLIENT BELIEVES IS NECESSARY IN ORDER TO PERMIT CLIENT TO USE THIRD PARTY ART INCLUDED IN THE SERVICES (INCLUDING WITHOUT LIMITATION, OBTAINING AN INDEPENDENT LICENSE IN CLIENT’S NAME TO USE SUCH THIRD PARTY ART). CLIENT HEREBY AGREES TO HOLD HARMLESS DATA FORK, ITS AFFILIATES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS AND PERMITTED ASSIGNS, FROM AND AGAINST ANY AND ALL COSTS INCURRED OR PAID BY CLIENT OR ANY THIRD PARTY ON ACCOUNT OF THIRD PARTY ART INCLUDED WITH THE SERVICES, EXCEPTING THEREFROM, COSTS INCURRED AS A DIRECT AND PROXIMATE RESULT OF DATA FORK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

(g) Third Party Policies . Client acknowledges that the ability of Jenkins Culinary Resources to provide Services comprising, in whole or in part, e-mail marketing, is dependent on the policies and procedures of third party providers such as Google®, Facebook®, Instagram®, and MailChimp®.  Third party providers may prohibit Client’s use of purchased, rented or third-party lists of e-mail addresses or marketing activities deemed unacceptable pursuant to terms of service, acceptable use policies or other rules established by such third party providers.   The inability of Jenkins Culinary Resources to utilize such third party services to accomplish marketing goals may adversely impact Jenkins Culinary Resources’ performance of the Services and shall constitute an excusable force majeure event pursuant to Section 11(c) of these Terms and Conditions.

 

11. Confidential Information.

(a) Definition. For purposes of this Section 11, “Confidential Information” of a Disclosing Party shall mean and include any information, written or oral, which relates to such Disclosing Party’s business, products, processes or services that is specifically designated as “Confidential Information” by such Disclosing Party or that constitutes “trade secrets” pursuant to the Uniform Trade Secrets Act as adopted in the State of Ohio, USA. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (a) information that was already known to the receiving party prior to disclosure or is later made public by or for the Disclosing Party on an authorized basis; (b) information obtained or readily ascertainable from the general public; (c) information received from a third party not known to be employed by or affiliated with the disclosing party; (d) information that was independently developed by the Receiving Party without reference to Confidential Information; and (e) information which is or becomes known to the general public other than through a breach of this Agreement. Client acknowledges and agrees that Jenkins Culinary Resources may share information about Jenkins Culinary Resources’ customers and basic information about Client’s listing and statistical summary data with prospective customers for the purpose of marketing Jenkins Culinary Resources’ services. The terms of this Agreement, along with Jenkins Culinary Resources’ pricing, software and technical documentation related to the Services shall be deemed Confidential Information regardless of any lack of designation.

 

(b) Duties. Each party (a “ Receiving Party ”) shall treat all Confidential Information, tangible and intangible, received by it in connection with this Agreement that pertains to the other party (a “Disclosing Party”) as confidential and proprietary information of the Disclosing Party, will not make any such Confidential Information available to any other person (except a subcontractor or contractor/affiliate who has also agreed to provisions substantially similar to those set forth in this Section

11), will use reasonable care to protect such Confidential Information from theft, loss, misuse and disclosure and will not use such Confidential Information except for Receiving Party’s benefit in connection with this Agreement. Each Receiving Party will, to the extent reasonably possible, return to the Disclosing Party all Confidential Information on termination of this Agreement. If a Receiving Party is ordered by law to disclose Confidential Information, such Receiving Party may do so, but only to the extent required by applicable law or process and only after first giving the Disclosing Party prompt written notice of that order.

(c) Remedies. The Parties acknowledge that the Confidential Information is of a special and extraordinary character, and that any breach of this Section 11 will cause a Disclosing Party irreparable injury and damage, and so each Disclosing Party will be entitled, in addition to all other legal or equitable remedies available to it, to injunctive relief to prevent, cease or otherwise redress that breach.

 

12. Miscellaneous.

(a) Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining Jenkins Culinary Resources’ written consent, except that Client may assign this Agreement without Jenkins Culinary Resources’ consent (i) to an affiliate (controlled by or under common control with, Client); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Client’s assets not involving a direct competitor of Jenkins Culinary Resources; provided that Client provides prompt written notice to Jenkins Culinary Resources of such assignment. Any permitted assignment by Client shall not modify the terms hereof, including without limitation, the specific geographic location applicable to the Services. Any attempt to assign Client’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

 

(b) Notice. Except as otherwise provided in this Agreement, any notice to Client that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by Client in the sign-up materials provided to Jenkins Culinary Resources in connection with entering into this Agreement or to such other address as provided in writing by Client to Jenkins Culinary Resources for such purposes. Except as otherwise provided in this Agreement, any notice to Jenkins Culinary Resources that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, such as Federal Express or equivalent, to: Jenkins Culinary Resources LLC, (27 Anne Ave. Ramsey, NJ 07446). Upon receipt, if a valid e-mail address is provided and remains current, Jenkins Culinary Resources may give notice to or communicate with Client by e-mail addressed to the persons identified in the sign-up process or to such other e-mail address or persons as Client shall hereafter specify by prior written notice. By providing an e-mail address, Client agrees that any receipt received by Jenkins Culinary Resources from Client’s service provider or Internet computer server indicating that the e-mail was received shall be deemed proof that Client received the message. If Client cannot see or print all or a portion of a message, Client agrees that it is Client’s responsibility to contact Jenkins Culinary Resources to resolve such technical issues.

 

(c) Force Majeure. Due performance of any duty or obligation hereunder by Jenkins Culinary Resources hereunder shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance beyond or event of Jenkins Culinary Resources’ reasonable control. Client acknowledges that Jenkins Culinary Resources has no responsibility for or control over search engines or Internet database partner(s) usage of customer data in fulfilling Internet search queries or any particular placement of any information from Client as a result of a search or query on any third party Web site. Client further acknowledges that Jenkins Culinary Resources has no responsibility for, or control over, third party social media content requirements or rules applicable thereto.

 

(d) Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legally or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.

 

(e) Waiver or Consent. Any failure by either of the Parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by Jenkins Culinary Resources must be in writing and signed by an authorized representative of Jenkins Culinary Resources.

 

(f) Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.

 

(g) Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or (except as expressly set forth in Section 2) agency relationship between the parties, or as authorizing either party to act as an agent for the other. The parties to this Agreement are independent parties.

 

(h) Resolution of Disputes; Binding Arbitration; No Class Representative Actions or Arbitrations.

 

(i) ANY AND ALL CLAIMS BETWEEN JENKINS CULINARY RESOURCES AND CLIENT BE RESOLVED IN BINDING ARBITRATION RATHER THAN IN COURT. Jenkins Culinary Resources and Client agree to submit to individual arbitration the resolution of any and all Claims (defined herein) by or between Jenkins Culinary Resources or its affiliates and Client relating to the Services or these Terms of Service. Jenkins Culinary Resources and Client agree that these Terms of Service affect interstate commerce, and that the enforceability of this Section 11(h) will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1–9 (“FAA”). “Claim(s)” means any dispute, claim or controversy by or between Client and/or Jenkins Culinary Resources or its affiliates, relating to the Services and/or these Terms of Service, as may be modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.

 

(ii) Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. As required by the AAA Rules, if Client initiates the arbitration proceedings, Provider must send the original copy of the completed form to Data Fork, which should be sent to Jenkins Culinary Resources at the notice address set forth in Section 11(b), Attention: “Arbitration Notice.”

 

(iii) CLIENT AND JENKINS CULINARY RESOURCES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Client and Jenkins Culinary Resources expressly agree that any Claim is personal to Client and Jenkins Culinary Resources and its affiliates, and any such Claim shall only be resolved by an individual arbitration, and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.

 

(i) Governing Law; Forum for Disputes. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Ohio applicable to agreements made and wholly performed therein. Client hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Franklin County, Ohio for the adjudication of any disputes arising out of or relating to this Agreement or Client’s access to or use of the Services. Client hereby waives any objection to venue or inconvenient forum laid therein.

 

(j) Revisions. In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, Jenkins Culinary Resources may revise this Agreement at any time by updating this posting and providing Client with written notice of such update. Client should visit this page from time to time to review the current Agreement, which shall continue to be binding on Client in its revised form.

 

(k) Privacy Policies. The Jenkins Culinary Resources Privacy Policy available at https://www.jenkinsculinaryresources.com/tosprivacy is hereby incorporated into this Agreement. By receiving the Services, Client is deemed to have read and accepted the Jenkins Culinary Resources Privacy Policy. Violation of the Jenkins Culinary Resources Privacy Policy by Client shall be a material breach of this Agreement.  If Jenkins Culinary Resources creates a website on behalf of Customer as part of the Services, Customer shall review and comply with all duties and responsibilities of Customer in accordance with such website privacy policy.