PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND BLU KITCHENS, INC., A VIRGINIA CORPORATION, AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES,

(COLLECTIVELY, “BLU KITCHENS,” “WE,” “US,” OR “OUR”).

SECTION 12 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 12 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS SET FORTH IN SECTION 12(G); AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

1. Acceptance of this Agreement

BLU KITCHENS, an online marketplace connection, using web-based technology that connects you and other consumers, restaurants and/or other businesses and independent delivery contractors (“Contractors”).  Blu Kitchens software permits consumers to place orders for food and/or other goods from various restaurants and businesses, either for delivery or pickup (the “Software”). Once a delivery order is made, the Software notifies Contractors that a delivery opportunity is available and the Software facilitates completion of the delivery to the consumer. Once a pickup order is made, the Software communicates with the customer regarding the availability of the order for pickup. Blu Kitchen is not a restaurant, delivery service, or food preparation business.
If you access any of our websites, install or use our Blu kitchen mobile application, install or use any other software supplied by Blu kitchen, or access any information, function, or service available or enabled by Blu Kitchen (each, a “Service” and collectively, the “Services”), or complete the Blu Kitchen account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:

Our Services may change from time to time. As a result, we reserve the right to update or modify this Policy at any time and from time to time without prior notice. If we make any material changes to the way we process your Personal Information, we will notify you before such changes are effective. If you object to any changes, you must cease using our Services. We recommend you review this Policy periodically. This Policy became effective on the date indicated at the top of this page. Your continued use of our Services after any changes or revisions to this Policy indicates your agreement to the terms of the revised Policy.

The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.

2. Modifications

Subject to Section 12(k) of this Agreement, Blu Kitchen reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.

3. Additional Terms and Policies

By using the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Blu Kitchen’s  Privacy Policy, which is incorporated in this Agreement by reference. You also agree to abide by any additional Blu Kitchens policies for Users that are published on our website or mobile application.  Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.

4. Rules and Prohibitions

Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:

5. Contractors and Merchants Are Independent

You understand and agree that Blu Kitchens provides a technology platform connecting you with independent food service providers and others that provide the products offered through the Services (“Merchants”), and independent third-party contractors who provide delivery services (“Contractors”). You acknowledge and agree that Blu Kitchens does not itself prepare food or offer delivery services, and has no responsibility or liability for the acts or omissions of any Merchant or any Contractor. Merchant is the retailer; the services offered by Blu Kitchens pursuant to this Agreement do not include any retail services or any food preparation services. Blu Kitchens is not in the delivery business nor is it a common carrier. Blu Kitchens provides a technology platform facilitating the transmission of orders by Users to Merchants for pickup or delivery by Contractors. Blu Kitchens will not assess or guarantee the suitability, legality or ability of any Contractor or Merchant. You agree that Blu Kitchens is not responsible for the Merchants’ food preparation or the safety of the food or whether the photographs or images displayed through the Services accurately reflect the food prepared by the Merchants and/or delivered by the Contractor, and does not verify Merchants’ compliance with applicable laws or regulations. Blu Kitchens has no responsibility or liability for acts or omissions by any Merchant or Contractor.

You agree that the goods that you purchase will be prepared by the Merchant you have selected, that title to the goods passes from the Merchant to you at the Merchant’s location, and that, for delivery orders, the Contractor will be directed by your instructions to transport the products to your designated delivery location. You agree that neither the Contractor nor Blu Kitchens holds title to or acquires any ownership interest in any goods that you order through the Services.

6. User Account

You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Blu Kitchens immediately. Blu Kitchens will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Blu Kitchens or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Blu Kitchens has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Blu Kitchens has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). We may enable or require you to use a single pair of login credentials to use the Blu Kitchens services. You agree not to create an account or use the Services if you have been previously removed by Blu Kitchens, or if you have been previously banned from use of the Services.

7. User Content

(a) User Content.

Blu Kitchens may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You further represent and warrant that any User Content that you submit, post and/or otherwise transmit through the Services

 

 (b) Feedback.

 You agree that any submission of any ideas, suggestions, and/or proposals to Blu Kitchens through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Blu Kitchens has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Blu Kitchens a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.

 

(c) Ratings and Reviews.

 To the extent that you are asked to rate and post reviews of Merchants or other businesses (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by Blu Kitchens and do not represent the views of Blu Kitchens or its affiliates. Blu Kitchens shall have no liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews. Because we strive to maintain a high level of integrity with respect to Ratings and Reviews posted or otherwise made available through the Services, you agree that:

8. Communications with Blu Kitchen

By creating a Blu Kitchens account, you electronically agree to accept and receive communications from, Contractors, or third parties providing services to Blu Kitchens including via email, text message, calls, and push notifications to the cellular telephone number you provided to Blu Kitchens. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Blu Kitchens, its affiliated companies and/or Contractor, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing Settings in your account. To opt out of receiving promotional text messages from Blu Kitchens, you must reply “STOP” from the mobile device receiving the messages. For purposes of clarity, delivery text messages between you and Dashers are transactional text messages, not promotional text messages.

9. E-SIGN Disclosure

By creating a Blu Kitchens account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Blu Kitchens at  privacy@Blu Kitchens.com with “Revoke Electronic Consent” in the subject line.

To view and retain a copy of this disclosure, you will need

10. Intellectual Property Ownership

Blu Kitchens alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services, or any intellectual property rights owned by Blu Kitchens. Blu Kitchens names, Blu Kitchens logos, and the product names associated with the Software and Services are trademarks of Blu Kitchens or third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.

11. Payment Terms

(a) Prices & Charges.

You understand that:

  

(b) No Refunds.

Charges paid by you for completed and delivered orders are final and non-refundable. Blu Kitchens has no obligation to provide refunds or credits, but may grant them, in each case in Blu Kitchen’s sole discretion.

(c) Promotional Offers and Credits.

Blu Kitchens, at its sole discretion, may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. You agree that promotional offers:

 

(d) Fees for Services.

 Blu Kitchens may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, and Surge Fees.  Blu Kitchens may also charge merchants fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.

 

(e) Referral Program.

 Blu Kitchen’s Referral Program Terms and Conditions are available at https://www.Blu Kitchens.com/referral-terms/ (“Referral Program”). Under the Referral Program, Blu Kitchens offers its registered Users in good standing the opportunity to earn gratuitous Blu Kitchens credits as promotional rewards by inviting their eligible friends to register as new Blu Kitchens Users and place their initial order through the Services by using a unique referral ID link (“Personal Link”). For each Qualified Referral (as defined in the Referral Program) generated through a User’s Personal Link, the User may receive a gratuitous credit as specified on Blu Kitchen’s Referral Program page. You agree that we may change the terms and conditions of the Referral Program or terminate the Referral Program at any time.

(f) Blu Subscriptions.

General: Blu is an automatically renewing subscription requiring recurring payments. A Blu subscription grants you access to reduced fees on orders placed through the Services for eligible restaurants with a minimum subtotal as stated when you sign up (excluding taxes and tips) (“Reduced Fees”). Reduced Fees and other Blu benefits may be redeemed only at eligible restaurants, as indicated through the Services. Blu Kitchens reserves the right to change whether a restaurant is eligible for Blu at any time with or without notice. Blu orders are subject to delivery driver and geographic availability, and taxes may apply to the cost of the items you order. You may provide an optional gratuity. Depending on the conditions as stated when you sign up, Service Fees and other fees may apply. We reserve the right to add and modify fees that may apply to your Blu orders. Your Blu benefits will extend to both Blu Kitchens when you register for a Blu subscription.

Blu is offered for a monthly or yearly fee payable at the start of the relevant period. By signing up for Blu and providing Blu Kitchens with your payment account information, you agree that:

Corporate Blu Subscriptions: Notwithstanding any other provision in these terms, you may be eligible for a complimentary Blu subscription when your employer registers for a Corporate Blu Subscription. If you have a complimentary Blu subscription through your employer, your account will begin and end in accordance with the terms of your employer’s corporate subscription unless your subscription is otherwise cancelled. To receive the subscription benefits, you must register using your corporate email address and be an authorized user added by your employer, and then click the activation button.

Trial or Promotional Subscriptions: From time to time, Blu Kitchens offers some customers trial or other promotional subscriptions to Blu. Such trial or promotional subscriptions are subject to this Agreement and the Blu Kitchens Terms and Conditions for Promotional Offers and Credits except as otherwise stated in the promotional offer. When your free trial period has expired, your subscription will automatically convert into a paid Blu subscription and Blu Kitchens will bill you the applicable fee. If you cancel Blu before the trial period has expired, Blu Kitchens will not charge you for the Blu subscription. If you purchase a Blu subscription with a promotional code, each time your Blu subscription renews, you will be charged the full billing amount. Only one trial or promotional subscription is available per household. If your Blu subscription is ever terminated for any reason, you shall not be eligible for a free trial on any subsequent Blu subscription.

Cancellations: You can cancel your Blu subscription at any time through the Services. You must cancel at least one (1) day before the next-scheduled subscription renewal date to avoid being charged for the next subscription period (e.g., if renewal date is January 10, you must cancel by 11:59:59 pm PT on January 9).

If you participated in a free trial or other promotional subscription period for Blu, you may cancel within the first 48 hours of your paid Blu subscription and receive a full refund of your Blu fee (as applicable).

For both monthly and annual subscribers, if you cancel your Blu subscription within the first 48 hours and have not placed a Blu-eligible order during that period, Blu Kitchens may, in its sole discretion, refund your Blu fee.

If you cancel your Blu subscription at any other time, you will not receive a refund, but you can continue to enjoy the Reduced Fees and other Blu benefits through the end of your then-current subscription period.

The Blu prices and features may change in the future. If Blu Kitchens changes the monthly or annual fee charged for a Blu subscription, Blu Kitchens will notify you and provide you with the opportunity to change your subscription before Blu is renewed for another subscription term. Your continued use of the Services after the change becomes effective will constitute your acceptance of the fee change. If you do not wish to continue subscribing with the new fees, you may cancel your Blu subscription within the specified notice period. Any Blu subscriptions will be subject to the terms and conditions in effect at the time you sign up or your subscription renews. Blu Kitchens may also make such changes with respect to current Blu subscriptions. In that case, Blu Kitchens will provide you with notice via email of the changes and when those changes will take effect. If you disagree with the changes to your current Blu subscription terms and conditions, you may cancel your Blu subscription and receive a refund of your subscription fee on a pro rata basis calculated from the end of the month during which you cancel the subscription.

No Transfer or Assignments & Cancellations by Blu Kitchens: Your Blu subscription cannot be transferred or assigned. Blu Kitchens reserves the right to accept, refuse, suspend, or cancel your Blu subscription at any time in its sole discretion. If Blu Kitchens cancels your Blu subscription, you will receive a refund of your subscription fee on a pro rata basis calculated from the end of the month during which your subscription was cancelled, unless Blu Kitchens terminates your account or your Blu subscription because it determines, in its sole discretion, that your actions or your use of the Services violates this Agreement or has harmed another User.

(g) Gift Cards.

Except as provided below, Gift Cards may be redeemable towards eligible orders placed on  www.Blu Kitchens.com or  in the Blu Kitchens apps in the United States.

12. Dispute Resolution.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH BLU KITCHENSAND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 12 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

(a) Scope of Arbitration Agreement.

 You agree that any dispute or claim relating in any way to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Blu Kitchens or the Services, to any products or services sold or distributed through the Services that you received as a User of our Services, or to any aspect of your relationship or transactions with Blu Kitchens as a User of our Services will be resolved by binding arbitration, rather than in court, except that

CASES HAVE BEEN FILED AGAINST BLU KITCHENS—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES.

IF YOU AGREE TO ARBITRATION WITH BLU KITCHENS, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST BLU KITCHENSIN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

(b) Informal Resolution.

 You and Blu Kitchens agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Blu Kitchens therefore agree that, before either you or Blu Kitchens demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties.
To notify Blu Kitchens that you intend to initiate an informal dispute resolution conference, email  Informal.Resolution@Blu Kitchens.com, providing your name, telephone number associated with your Blu Kitchens account (if any), the email address associated with your Blu Kitchens account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration.   The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

(c) Arbitration Rules and Forum.

 This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 12(b). If this notice is being sent to Blu Kitchens, it must be sent by email to the counsel who represented Blu Kitchens in the informal dispute resolution process, or if there was no such counsel then by mail to General Counsel, at 303 2nd Street, Suite 800, San Francisco, CA, 94107. The arbitration will be conducted by ADR Services, Inc. under its rules and pursuant to the terms of this Agreement. Arbitration demands filed with ADR Services, Inc. must include

(d) Arbitrator Powers.

 The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration- organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and Blu Kitchens. Except as expressly agreed to in Section 12(g) of this Agreement, the arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement).
The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Blu Kitchens.

(e) Waiver of Jury Trial.

 Trial. YOU AND BLU KITCHENS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Blu Kitchens are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

(f) Waiver of Class or Consolidated Actions.

 EXCEPT AS EXPRESSLY AGREED TO IN SECTION 12(G) OF THIS AGREEMENT, YOU AND BLU KITCHENS AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS EXCEPT AS SET FORTH IN SECTION 12(G). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 12(G).
If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Blu Kitchens is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20. This provision does not prevent you or Blu Kitchens from participating in a class-wide settlement of claims.

(g) Batch Arbitrations. 

 To increase efficiency of resolution, in the event 100 or more similar arbitration demands against Blu Kitchens, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider shall

(h) Opt Out. 

 Blu Kitchen’s updates to these Terms and Conditions do not provide a new opportunity to opt out of the Arbitration Agreement for customers or Users who had previously agreed to a version of Blu Kitchen’s Terms and Conditions and did not validly opt out of arbitration. Blu Kitchens will continue to honor the valid opt outs of customers or Users who validly opted out of the Arbitration Agreement in a prior version of the Terms and Conditions. If you are a customer or User who creates a Blu Kitchens or Caviar account for the first time on or after November 10, 2020, you may opt out of this Arbitration Agreement. If you do so, neither you nor Blu Kitchenscan force the other to arbitrate as a result of this Agreement. To opt out, you must notify Blu Kitchensin writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Blu Kitchensusername (if any), the email address you currently use to access your Blu Kitchensaccount (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: opt-out@Blu Kitchens.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.

(j) Survival.

 This Arbitration Agreement will survive any termination of your relationship with Blu Kitchens.

(k) Modification.

 Notwithstanding any provision in the Agreement to the contrary, we agree that if Blu Kitchensmakes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Blu Kitchens.

13. Third-Party Interactions.

(a) Third-Party Websites, Applications and Advertisements.

 The Services may contain links to third-party websites ( “Third-Party Websites”) and applications (“Third- Party Applications”) and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, Blu Kitchenswill not warn you that you have left Blu Kitchens’s website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of Blu Kitchens. Blu Kitchensis not responsible for any Third-Party Websites, Third-Party Applications or any Third-Party Advertisements.Blu Kitchensdoes not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

(b) App Stores. 

 You acknowledge and agree that the availability of the Software and the Services is dependent on the third party from which you received the application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge and agree that this Agreement is between you and Blu Kitchensand not with the App Store. Blu Kitchens, not the App Store, is solely responsible for the Software and the Services, including the mobile application(s), the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Software and the Services, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Software or the Services. You agree to comply with, and your license to use the Software and the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software or the Services. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.

14. Social Media Guidelines.

Blu Kitchensmaintains certain social media pages for the benefit of the Blu Kitchenscommunity. By posting, commenting, or otherwise interacting with these pages, you agree to abide by our  Social Media Community Guidelines.

15. Indemnification

You agree to indemnify and hold harmless Blu Kitchensand its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation, attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from

16. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BLU KITCHENSMAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.

BLU KITCHENSDOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, BLU KITCHENSSHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

17. Internet Delays

The Software and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in Blu Kitchens’s Privacy Policy or as otherwise required by applicable law, Blu Kitchens is not responsible for any delays, delivery failures, or damage, loss or injury resulting from such problems.

18. Breach And Limitation of Liability

(a) General. 

 You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost.  You understand and agree to the limitations on remedies and liabilities set forth in this Section 19 to keep the Software and Services simple and efficient, and costs low, for all Users.

(b) Cap on Liability. 

 Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, BLU KITCHENS’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO BLU KITCHENSIN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

(c) Disclaimer of Certain Damages. 

 TO THE FULLEST EXTENT OF LAW, BLU KITCHENSSHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE).  THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY BLU KITCHENS’S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.

19. Exclusive Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Blu Kitchens agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in PrinceWilliam County Virginia.

20. Termination

If you violate this Agreement, Blu Kitchens may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.

In addition, at its sole discretion, Blu Kitchens may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, Blu Kitchens reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.

21. Procedure for Making Claims of Copyright Infringement.

It is Blu Kitchen’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Blu Kitchens by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:

22. General

(a) No Joint Venture or Partnership. 

 No joint venture, partnership, employment, or agency relationship exists between you, Blu Kitchens or any third-party provider as a result of this Agreement or use of the Software or Services.

(b) Choice of Law.

 This Agreement is governed by the laws of the State of Virginia consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.

(c) Severability.

 Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

(d) Consumer Complaints.  

 In accordance with Virginia Civil Code, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the Virginia Department of Consumer Affairs by contacting them in writing

(e) Accessing and Downloading the Application from iTunes.

 The following applies to any Software accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):

(f) Notice.

 Where Blu Kitchens requires that you provide an e-mail address, you are responsible for providing Blu Kitchens with your most current e-mail address. In the event that the last e-mail address you provided to Blu Kitchens is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Blu Kitchen’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Blu Kitchens through the following web form:  https://help.Blu Kitchens.com/consumers/s/contactsupport . Such notice shall be deemed given on the next business day after such e-mail is actually received by Blu Kitchens.

(g) Electronic Communications.

 For contractual purposes, you

(h) Transfer and Assignment.

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Blu Kitchens without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.

(i) Entire Agreement.

 This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and Blu Kitchens relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.