Terms of Use
Read this Terms of Use Agreement (“Agreement”) before using www.sunandfork.com (the “Site”) or making a purchase on the Site. Your access to and use of the Site is provided and all sales made through the Site are subject to this Agreement. By using any part of the Site or making a purchase through the Site, you (“you” or “Purchaser”) agree to these terms and conditions.
The Site is owned and operated by Sun & Fork Restaurants, Inc. (“Sun & Fork”). Sun & Fork would like to thank you for visiting the Site.
Effective Date: This Agreement was last updated on, and is effective as of July 12, 2018.
YOU ARE NOT PERMITTED TO USE THIS SITE IF YOU ARE UNDER THE AGE OF 13.
JURISDICTION
This Site, including its information, services and content, is intended for use within the United States. Sun & Fork makes no representation that the Site, including its information, services and content, are appropriate or available for use in other locations. Those who choose to access the Site from locations other than the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local U.S. laws are applicable.
YOUR RESPONSIBILITIES
You acknowledge that you are responsible for whatever material you submit or is submitted through your Account, including its legality, reliability, appropriateness, originality, or copyright. If Sun & Fork makes available a discussion group or bulletin board on this Site, you warrant that your use of such features is for lawful purposes only, as outlined below.
By placing or downloading material on the Site, including intellectual property, documents, text, images, audio files or other audio-visual content to the Site (“User Content”), you represent and warrant: (a) You own or otherwise have all necessary rights to the User Content you provide and the rights to provide it under this Agreement; and (b) the User Content will not cause injury to any person or entity.
Without limitation, you may not submit to or transmit through this Site any material, or otherwise engage in any conduct that:
(a) violates or infringes the rights of Sun & Fork or others including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy, proprietary and/or intellectual property rights;
(b) is inaccurate, unlawful, discriminatory, threatening, abusive, harmful, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, obscene, offensive, or otherwise objectionable to Sun & Fork or other uses of the Site;
(c) victimizes, harasses, degrades, intimidates, discriminates against, or retaliates against an individual or group of individuals on the basis of religion, sex, race, national origin, age, physical or mental disability, sexual orientation, or other characteristics protected by applicable state or federal law;
(d) collects, stores, and/or discloses personal data about other others unless specifically authorized by such others;
(e) impersonates any person, business or entity, including Sun & Fork, and Sun & Fork’s employees and agents;
(f) misrepresents your affiliation with a person or entity;
(g) contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
(h) attempts to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining, or any other means;
(i) transmits spam, bulk or unsolicited communications or posts third-party advertisements;
(j) that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations or other government requirements or rules having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm, or that otherwise could constitute a criminal offense or give rise to civil liability;
(k) violates this Agreement, guidelines, or any policy Sun & Fork posts on the Site; or
(l) disrupts the normal flow of dialogue or negatively affects or interferes with other users’ ability to use the Site.
You acknowledge that Sun & Fork has the right (but not the obligation), in Sun & Fork’s sole discretion, to view, move, remove, block, edit, or refuse any Content, including User Content, for any reason, including, without limitation, that such User Content violates this Agreement or is otherwise objectionable.
RIGHTS IN YOUR CONTENT; UNSOLICITED INFORMATION AND IDEAS
For content that is covered by intellectual property rights, like photos, videos, and audio (“IP content”), you specifically grant Sun & Fork a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with the Site (“IP License”) subject to any other written agreements signed by Sun & Fork. This IP License ends when you delete your IP content or your Account unless your content has been shared with others and they have not deleted it.
When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
Any communications you send to Sun & Fork or its Site by e-mail or any other means are not confidential and Sun & Fork is under no obligation to refrain from reproducing, publishing (except for Personally Identifiable Information, as defined in Sun & Fork’s Privacy Policy), or otherwise using them in any way or for any purpose. Sun & Fork shall be free, but is under no obligation, to use the content of any such communications, including any ideas, inventions, concepts, or techniques for any purpose, including development, manufacture, market, and sale.
COPYRIGHT AND TRADEMARK INFORMATION
All content posted to the Site by or at the direction of Sun & Fork, including names, images, logos and pictures identifying services of Sun & Fork or any of its site designs, text, graphics, interfaces, and the selection and arrangements thereof, is licensed by or is the property of Sun & Fork protected by intellectual property rights. Except for personal non-commercial use of materials on the Site, any use, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Sun & Fork, is strictly prohibited. You agree that you will not use any robot, spider, or other automatic device, or manual process to monitor or copy any part or all of the Site or the content contained therein without prior written permission of an authorized officer of Sun & Fork.
Sun & Fork® and Sun & Fork logos and other trademarks are proprietary marks of Sun & Fork and may not be used in connection with any product or service that is not provided by Sun & Fork, in any manner that is likely to cause confusion among clients, or in any manner that disparages or discredits us. Nothing contained herein shall be construed as conferring any license or right under any Sun & Fork patent, copyright, or trademark.
All other trademarks displayed on the Site are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those third parties. In addition, such use of trademarks or links to the Web sites of third parties is not intended to imply, directly or indirectly, that those third parties endorse or have any affiliation with Sun & Fork or the Site.
NOTIFICATION OF CLAIMED COPYRIGHT INFRINGEMENT
A. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is Sun & Fork’s policy to terminate the Account of a Member who is deemed to infringe third-party intellectual property rights and/or or to remove User Content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Site, please provide substantially the following information to Sun & Fork’s Copyright Agent (please consult your legal counsel or see 17 U.S.C. § 512(c)(3) to confirm these requirements):
(1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(2) a description of your copyrighted work or other intellectual property that you claim has been infringed;
(3) a description of where the material you claim is infringing is located on the site (providing Sun & Fork with website URL is the quickest way to help Sun & Fork locate content quickly);
(4) your address, telephone number, and e-mail address;
(5) a 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; and
(6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
B. Our copyright agent can be reached as follows:
(1) Address:
Attn: General Counsel / DMCA Agent
Sun & Fork Restaurants, Inc.
8027 Cooper Creek Blvd. #103
University Park, FL 34201
[email protected]
(2) For other inquiries or questions, please use the information listed in the Contact section on the Site. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
C. Counter-Notification for Intellectual Property Infringement. If you elect to send Sun & Fork a counter-notice in response to a notice of intellectual property infringement, to be effective it must be a written communication provided to the Sun & Fork’s designated Copyright Agent (see above for contact information) that includes substantially the following (please consult your legal counsel or see 17 U.S.C. § 512(g)(3) to confirm these requirements):
(1) an electronic or physical signature of the registered user;
(2) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (providing Sun & Fork with a website URL is the quickest way to help Sun & Fork locate content quickly);
(3) your address, telephone number, and e-mail address;
(4) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(5) a statement by you that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which Sun & Fork may be found, and that the you will accept service of process from the person who provided notification of intellectual property infringement or an agent of such person.
Please note that under § 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
WARRANTIES
B. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FIRST WATCH AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SHAREHOLDERS AND CONTRACTORS DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE EXCLUSIVE REMEDIES UNDER ANY APPLICABLE WARRANTY ARE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS.
FIRST WATCH IS NOT LIABLE FOR ANY DAMAGES YOU SUFFER FROM USE OF THE SITE. THE MATERIALS ARE PROVIDED “AS IS.” FIRST WATCH MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO, AND SPECIFICALLY DISCLAIMS LIABILITY FOR, THE AVAILABILITY, USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, RELIABILITY OR COMPLETENESS OF THE SITE OR ITS CONTENT.
FIRST WATCH MAKES NO WARRANTY OR REPRESENTATION THAT: (a) ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM THE SITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT; or (c) ANY ERRORS IN THE SITE WILL BE CORRECTED.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USING, ACCESSING, OR OBTAINING ANY CONTENT FROM THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
FIRST WATCH HAS NO OBLIGATION TO RETAIN ANY DATA OR INFORMATION AFTER THE TERMINATION OF YOUR ACCOUNT OR SUN ECLUB MEMBERSHIP. YOU ARE SOLELY RESPONSIBLE FOR THE BACKUP OF ANY AND ALL DATA OR INFORMATION YOU POST OR SUBMIT TO THE SITE AND FIRST WATCH HAS NO LIABILITY OF ANY KIND FOR ANY LOSS OF DATA OR INFORMATION.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OF OR THE ENTIRE EXCLUSION MAY NOT APPLY TO YOU.
IX. Limitation of Liability
IN NO EVENT WILL FIRST WATCH, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SHAREHOLDERS OR CONTRACTORS BE LIABLE FOR ANY DAMAGES RESULTING FROM USE OF THE SITE OR PURCHASES MADE THROUGH THE SITE, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE), EVEN IF FIRST WATCH HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION, DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE OR ACCESS THE SITE, SERVICES, OR CONTENT; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SITE; (c) LATE SHIPMENT OR DELIVERY, OR DAMAGE TO GOODS IN TRANSIT (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION, UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; (e) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY, RELY ON, OR DISTRIBUTE; OR (f) THE LOSS OF ANY DATA, INFORMATION, OR CONTENT SUBMITTED OR POSTED TO THE SITE.
IN NO EVENT WILL FIRST WATCH’S LIABILITY OR THE LIABILITY OF FIRST WATCH’S LICENSORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SHAREHOLDERS AND CONTRACTORS IN CONNECTION YOUR USE OF THIS SITE, UNDER ANY THEORY OF RECOVERY, EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID FOR THE PRODUCTS OR SERVICES THAT GIVE RISE TO THE CLAIM.
FORCE MAJEURE: FIRST WATCH SHALL NOT BE LIABLE FOR ANY ACTIONS OR FAILURE TO ACT DUE TO CAUSES BEYOND ITS REASONABLE CONTROL, OR DUE TO ACTS OF GOD, ACTS OF PURCHASER, ACTS OF CIVIL OR MILITARY AUTHORITY, PRIORITIES, FIRES, STRIKES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, WAR, RIOTS, DELAYS IN TRANSPORTATION, CAR SHORTAGES, AND INABILITY DUE TO CAUSES BEYOND ITS REASONABLE CONTROL TO OBTAIN NECESSARY LABOR, MATERIALS, OR PROCESSING FACILITIES.
THIS AGREEMENT DEFINES YOUR SOLE AND EXCLUSIVE REMEDY.
TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
CAREER OPPORTUNITIES
Any career opportunities listed on this Site include opportunities with locations owned and operated by Sun & Fork as well as locations owned and operated by its franchisees. Postings on this site do not represent an offer of employment; any offer of employment must be made in person by an authorized representative of Sun & Fork or of a Sun & Fork franchisee in accordance with Sun & Fork’s or the franchisee’s hiring policies and procedures. Sun & Fork does not accept and specifically disclaims any responsibility or liability with respect to the terms and conditions of employment with a franchisee.
INDEMNIFICATION
You agree to indemnify and hold Sun & Fork, its parents, predecessors, subsidiaries, assigns, agents, attorneys, trustees, trusts, trust beneficiaries, directors, partners, joint venturers, stockholders, affiliates, officers and employees, harmless from each and any claim or demand, including but not limited to reasonable attorneys’ fees and costs, due to or arising out of your use of the Site, your unsanctioned use or misuse of products or services purchased from Sun & Fork, your violation of this Agreement, or your (or other user of the Site using your computer or account) infringement of any intellectual property or any other right of any person or entity.
TERMINATION
Your right to use the Site automatically terminates if you violate this Agreement or any rules or guidelines posted in connection with the Site. Sun & Fork also reserves the right, in Sun & Fork’s sole discretion, to terminate your access to all or part of any of the Site, for any reason, with or without notice.
PRIVACY POLICY
Our Privacy Policy explains the practices that apply to your information. The Privacy Policy is fully incorporated herein by reference. Your ongoing use of this Site signifies your consent to the information practices disclosed in Sun & Fork’s Privacy Policy. You can review the Privacy Policy by clicking on the “Privacy Policy” link located at www.sunandfork.com.
THIRD-PARTY SITES
Our Site may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. You acknowledge that Sun & Fork is not responsible for the availability of, or the content located on or through, any third-party site. You should contact the site administrator or webmaster for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is subject to the terms of use and privacy policies of each site, and Sun & Fork is not responsible for your use of said third-party sites. Sun & Fork encourages you to review said privacy policies of third-parties’ sites.
GOVERNING JURISDICTION OF THE COURTS IN THE STATE OF FLORIDA
This Agreement is governed by and will be construed according to Florida law, excluding any principles of conflicts of law. In the event of any dispute or controversy arising from this Site, you consent to the jurisdiction of the courts of Miami-Dade County, Florida, and of the federal district court of the Southern District of Florida. You further agree that venue for litigation arising from this Site will be exclusively in the Southern District of Florida or its counterpart state court.
ENTIRE AGREEMENT
This Agreement represents the entire agreement between you and us. No distributor, agent, or other person is authorized to modify this Agreement or to make any warranty or representation which is different than, or in addition to, the warranties and representations of this Agreement.
BOTNETS
Sun & Fork retains the right, at its sole discretion, to terminate any accounts, where applicable, involved with botnets and related activities. If any hostnames are used as command and control points for botnets, Sun & Fork reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at Sun & Fork’s discretion.
OTHER TERMS
If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. You agree that this Agreement and any other agreements referenced herein may be assigned by us, in Sun & Fork’s sole discretion, to a third party in the event of a merger or acquisition. This Agreement shall apply in addition to, and shall not be superseded by, any other written agreement relating to your participation as a Member unless expressly agreed to in writing signed by Sun & Fork. You agree that by accepting this Agreement, you are consenting to the use and disclosure of your personally identifiable information and other practices as described in Sun & Fork’s Privacy Policy.
You acknowledge and agree that Sun & Fork may preserve and disclose any account information and the contents of your online communications if required to do so by law, or in good faith belief that preservation and/or disclosure is reasonably necessary for the following purposes: (a) to comply with legal process, such as a court order, search warrant, or subpoena; (b) to enforce the terms of this Agreement; (c) to render service you request; (d) to protect Sun & Fork’s rights or property; or (e) in circumstances that Sun & Fork deems, in its sole discretion, to pose a threat to the safety of you or others.
MODIFICATIONS AND INTERRUPTION TO SERVICE
Sun & Fork reserves the right, at any time, to modify, alter, or update this Agreement without prior notice. Modifications shall become effective immediately upon being posted on the Site. Your continued use of the Site or purchases made after amendments are posted constitutes an acknowledgment and acceptance of the Agreement and its modifications. Except as expressly stated herein, this Agreement may not be amended.
Sun & Fork reserves the right to modify or discontinue the Site with or without notice. Sun & Fork shall not be liable to you or any third party should Sun & Fork exercise its right to modify or discontinue the Site. You acknowledge and accept that Sun & Fork does not guarantee continuous, uninterrupted, or secure access to the Site and operation of the Site may be interfered with or adversely affected by numerous factors or circumstances outside of Sun & Fork’s control.
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