Terms of Service
Last Updated 01/18/24
This Terms of Service ("TOS") governs how Hunger Not Impossible, Inc., d/b/a Bento (“Bento,” “we,” “us,” “our”) provides its websites that link to these TOS (including gobento.com), as well as its food ordering/delivery services (together, the websites and services are collectively referred to herein as the “Services”).
PLEASE ALSO READ THESE TOS CAREFULLY, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS, AND CONTAIN A BINDING ARBITRATION CLAUSE THAT WILL GOVERN ANY DISPUTES YOU HAVE WITH US REGARDING THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE SERVICES.
We reserve the right, at our sole discretion, to change or modify portions of these TOS at any time. If we do this, depending on the nature of the change, we will post the changes on this page and indicate at the top of this page the date these terms were last revised and/or notify you, either through the Services' user interface, in an email notification, or through other reasonable means and as required by applicable law. Except where otherwise prohibited by applicable law, your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new TOS.
At Bento, we respect the privacy of our users. For details please see our Privacy Policy, which is incorporated into these TOS by reference.
1. Access and Use of the Services
1.1 Use Description:
The Services are provided solely for your personal and non-commercial use. By using the Services, you represent and warrant that you are of legal age (18 years of age or older or otherwise of legal age in your jurisdiction of residence), and competent to agree to these Terms.
We grant you a limited, non-exclusive, non-transferable, license to access and use the Services for these purposes. Except for the foregoing limited license, no right, title or interest shall be transferred to you. Bento may revoke your license at any time in its sole discretion.
1.2 Modifications to the Services:
Bento reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Bento will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
2. Conditions of Use
You are solely responsible for all video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“Content”) that you upload, post, publish or display (hereinafter, “Upload”) or email or otherwise use via the Services. Bento reserves the right to investigate and take appropriate legal action against anyone who, in Bento's sole discretion, violates this provision, including without limitation, removing the offending Content from the Services, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Services to:
email or otherwise Upload any Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to Upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Bento, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Bento or its users to any harm or liability of any type;
interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
violate any applicable local, state, national or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
solicit personal information from other users; or harvest or collect email addresses or other contact information of other users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
3. Intellectual Property Rights
3.1 Services Content, Software and Trademarks:
You acknowledge and agree that the Services may contain Content or features (“Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Bento, you agree not to modify, copy, frame, scrape, reverse-engineer, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally Upload to the Services. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Bento from accessing the Services (including blocking your IP address or mobile number), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Bento.
The Bento name and logos are trademarks and service marks of Bento (collectively the “Bento Trademarks”). Other product and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Bento. Nothing in this TOS or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Bento Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of Bento Trademarks will inure to our exclusive benefit.
You acknowledge and agree that Bento may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these TOS; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Bento, its users and the public. You understand that the technical processing and transmission of the Services, including Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
3.2 Third Party Material:
Under no circumstances will Bento be liable in any way for any Content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any such Content. You acknowledge that Bento does not pre-screen Content, but that Bento and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services. Without limiting the foregoing, Bento and its designees will have the right to remove any Content that violates these TOS or is deemed by Bento, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
3.3 User Content Transmitted Through the Services:
With respect to the Content or other materials you Upload through the Services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, and that you have all required rights to post or transmit such User Content or other materials without violation of any third-party rights. By uploading any User Content you hereby grant and will grant Bento, its affiliated companies and partners a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, Upload, adapt, perform, publish, distribute (through multiple tiers of distribution and partnerships), store, modify and otherwise use and fully exploit your User Content in any and all media, form, medium, technology or distribution methods now known or later developed and for any and all purposes (commercial or otherwise).
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information relevant to the Services (“Submissions”), provided by you to Bento, its affiliated companies or partners are non-confidential and Bento, its affiliated companies and partners will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
4. Third Party Services
The Services may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Bento has no control over such sites and resources and Bento is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Bento will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that Bento is not liable for any loss or claim that you may have against any such third party.
5. Indemnity and Release
To the fullest extent permitted by law, you agree to release, indemnify and hold Bento and its affiliates and their officers, employees, directors and agents (“Bento Entities”) harmless from any from any and all losses, damages, expenses (including reasonable attorneys’ fees and court costs), rights, claims, actions of any kind (including any inquiries or investigations), and injury arising out of or relating to your use of the Services, any Content, your connection to the Services, your violation of these TOS or your violation of any rights of another. Bento reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Bento in the defense of such matter.
If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
6. Disclaimer of Warranties
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES, AND THE INFORMATION AND CONTENT PROVIDED ON THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BENTO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
BENTO MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS OR CONTENT THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
BENTO PROVIDES ALL INFORMATION IN CONNECTION WITH THE SERVICES, INCLUDING NUTRITION INFORMATION, FITNESS INFORMATION, AND INFORMATION RELATING TO MEDICAL AND HEALTH CONDITIONS, FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND NOT AS MEDICAL ADVICE. BENTO DOES NOT ASSUME ANY LIABILITY FOR INACCURACIES, OMISSIONS OR MISSTATEMENTS RELATING TO SUCH INFORMATION. INFORMATION ON THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR THE ADVICE PROVIDED BY A HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE SUCH INFORMATION AS MEDICAL ADVICE OR FOR THE DIAGNOSIS OR TREATMENT OF A HEALTH PROBLEM, DISEASE, OR OTHER MEDICAL CONDITION. ALWAYS CONSULT A HEALTHCARE PROFESSIONAL BEFORE MAKING ANY CHANGES TO YOUR DIET OR EXERCISE REGIMEN.
BENTO DOES NOT PROVIDE DELIVERY SERVICES OR FOOD PREPARATION. EACH FOOD SERVICE PROVIDER OFFERS DELIVERY SERVICES THROUGH USE OF THE SERVICES. BENTO OFFERS INFORMATION AND A METHOD TO ON-DEMAND MEAL DELIVERY, BUT DOES NOT, AND DOES NOT INTEND TO, PROVIDE COURIER SERVICES OR DELIVERY SERVICES, OR ACT IN ANY WAY AS A COURIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY COURIER. Unless expressly stated otherwise, the food featured on the Services is offered, provided, sold, and delivered by the applicable food service provider, not Bento. We are in no way responsible for the quality of food or services offered by any food service provider. BENTO DOES NOT AND DOES NOT INTEND TO PREPARE FOOD, OR ACT AS A FOOD PREPARATION ENTITY AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY PREPARED FOOD. YOU AGREE THAT BENTO IS NOT RESPONSIBLE FOR KNOWING OR NOTIFYING ANYONE OF ANY FOOD ALLERGIES OR FOOD SENSITIVITIES THAT YOU MAY HAVE.
When using a Bento agent to perform on your behalf with a third party supplier, you agree and acknowledge that the third party supplier is providing the goods for you, and that Bento is merely acting as your agent. Where appropriate, Bento will communicate with the third party supplier on your behalf. Such third party suppliers may have their own terms of use and privacy policies which they require compliance with in order to receive their goods, and you agree to comply with such policies, where applicable.
7. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE BENTO ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE BENTO ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR THROUGH THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL THE BENTO ENTITIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THE BENTO ENTITIES IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TOS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
8. Binding Arbitration; Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE OR PARTICIPATE IN A LAWSUIT IN COURT.
Informal Dispute Resolution Procedure. If a Dispute (as defined below) arises between you and Bento, Bento is committed to working with you to try to reach a reasonable resolution. For any such Dispute, both parties acknowledge and agree that they will first use good faith efforts to settle the Dispute informally and directly through consultation and negotiations before initiating any formal dispute resolution proceeding in arbitration or otherwise. Such informal resolution requires first sending a written description of the dispute to the other party. For any Dispute you initiate, you agree to send the written description of the Dispute along with the email address utilized as your username and profile associated with your account, if applicable, to legal@gobento.com. The written description must be on an individual basis and provide, at minimum, the following information: your name and contact information; a description of the nature or basis of the claim or dispute; the specific relief sought; and proof of your relationship with Bento. Unless the parties agree to extend the period for informal resolution, if the Dispute is not resolved within sixty (60) days after receipt of the written description of the Dispute, you and Bento agree to the further Dispute resolution provisions below.
The informal dispute resolution procedure in this section 8(i) is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution procedure.Mutual Arbitration Agreement. If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve Disputes, (except as provided in herein) subject to the terms set forth below and the National Arbitration and Mediation (“NAM”) rules. If you are initiating arbitration, a copy of the demand shall also be emailed to legal@gobento.com. If you are a Bento accountholder, any demand filed by you initiating arbitration must include the email address you used to log onto Bento, as well as any profile associated with that account that is controlled by you.
You and Bento agree that the terms of this Section 8 (collectively the “Arbitration Agreement”) govern any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, the Terms of Service, or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory (each a “Dispute” and collectively “Disputes”).
The parties further agree that the determination of the scope, enforceability, or applicability of this Arbitration Agreement, including, but not limited to any claim that all or any part thereof of this Arbitration Agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment) will be resolved exclusively by final and binding arbitration in accordance with this Section 8.
The only matters excluded from this Arbitration Agreement are the litigation of certain intellectual property and small court claims, as provided below.
This Arbitration Agreement supersedes any prior Arbitration Agreement entered by the parties and is applicable to unfiled claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth herein.
The parties agree that this Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.
Notwithstanding the parties’ decision to resolve all Disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (ii) bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.Class Arbitration and Collective Relief Waiver. YOU AND BENTO ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN SUBPART 8.6 BELOW, ANY ARBITRATION SHALL BE CONDUCTED IN AN INDIVIDUAL CAPACITY ONLY AND NOT AS A CLASS OR COLLECTIVE ACTION AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO RESOLVE AN INDIVIDUAL PARTY’S CLAIM. NOTWITHSTANDING THIS ACKNOWLEDGEMENT AND AGREEMENT, ANY ARBITRATION INVOLVING YOU MAY PROCEED ON A CONSOLIDATED BASIS IF AND ONLY IF BENTO PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING. With the exception of this subpart 8.3 and subparts 8.6 and 8.7 below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, this subpart 8.3 or subparts 8.6 or 8.7 are found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Bento shall be entitled to arbitrate their Dispute.
Arbitration Rules. The arbitration will be administered by NAM and conducted before a single arbitrator in accordance with the rules of NAM, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Supplemental Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com.
Arbitration Location and Procedure. For all U.S. residents, the arbitration shall be held (i) at a location determined under the applicable NAM rules and procedures that is reasonably convenient for you and is no more than 100 miles from your home or place of business; or (ii) at another location you and we agree upon. For non-U.S. residents, the arbitration shall be held in San Francisco, California (unless otherwise agreed by the parties). The arbitrator shall apply California law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement. If the amount in controversy does not exceed $10,000 and you do not seek injunctive or declaratory relief, then the arbitration will be conducted solely on the basis of documents you and Bento submit to the arbitrator, unless the arbitrator determines that a hearing is necessary, or the parties agree otherwise.
If the amount in controversy exceeds $10,000 or seeks declaratory or injunctive relief, either party may request (or the arbitrator may determine) to hold a hearing, which shall be via videoconference or telephone conference unless the parties agree otherwise.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Bento (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).Mass Arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against Bento (a “Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 10 demands per batch (to the extent there are fewer than 10 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each demand within the batch (the same arbitrator may preside over multiple demands in a batch if the relevant claimants and Bento so agree); (iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 10 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Bento and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; (vi) that the staged process of batched proceedings, with each set including 10 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved; and (vii) to make good faith efforts to resolve each batch of demands within 180-days, failing which any of the claimants or Bento may cease arbitration and file in a court of competent jurisdiction.
Arbitrator selection for the demands in each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings for each demand within a batch will be conducted.
You agree to cooperate in good faith with Bento and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of demands. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of demands necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Bento otherwise consents in writing, Bento does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this subpart 8.6. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this subpart 8.6 or the engagement of a mediator in subpart 8.7 is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Bento shall be entitled to arbitrate any claim that is a part of the Mass Filing.Mediation Following First Batch in a Mass Filing. The results of the first batch of demands will be given to a NAM mediator selected from a group of 5 mediators initially proposed by NAM, with Bento and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results are provided to the mediator, Bento, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either Bento or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Bento nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process. Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.
Arbitrator’s Decision. The arbitrator’s decision shall be controlled by the terms and conditions of these Terms of Service and any of the other agreements referenced herein that the applicable user may have entered into in connection with the website. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of the “Disclaimer and Limitation of Liability” section of these Terms of Service as to the types and the amounts of damages or other relief for which a party may be held liable. No individual arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.
Fees. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Bento will pay any filing and hearing fees in excess of $250 that the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, in which case arbitration fees (including attorneys’ fees) may be imposed upon you consistent with the Arbitrator’s Rules and the standard for sanctions set forth in Federal Rule of Civil Procedure 11. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise, including as set forth in this Arbitration Agreement. The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in subpart (vi)) provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to legal@gobento.com with the subject line, “ARBITRATION OPT-OUT.” The notice must be sent within thirty (30) days of (a) [INSERT EFFECTIVE DATE OF TERMS]; or (b) your first use of the Services, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, and Bento also will not be bound by it.
Changes. Bento will provide thirty (30) days’ notice of any material changes to this “Binding Arbitration and Class Action Waiver” section. Any such changes will go into effect 30 days after Bento provides notice and will apply to all claims not yet filed regardless of when such claims may have accrued. If Bento changes this “Binding Arbitration and Class Action Waiver” section after the date you first accepted this Arbitration Agreement (or accepted any subsequent changes to this Arbitration Agreement), you agree that your continued use of the Service 30 days after such change will be deemed acceptance of those changes.
9. SMS/Text Messaging Terms
By opting into any Bento text messaging program or otherwise providing your phone number to Bento, you expressly consent to receive transactional, operational, informational, and recurring marketing text messages that may be sent using an automatic telephone dialing system, by or on behalf of Bento, at the cell phone number you provide us. The number of text messages that you receive will vary depending on which Bento text messaging programs you sign up for or which Bento services you use. Consent to receive texts is not a condition of purchasing any goods or services. We may not be able to deliver messages to all mobile carriers. Bento and all mobile carriers are not liable for delayed or undelivered messages.
To stop receiving text messages from us, you agree to reply either “STOP”, “END”, “CANCEL”, or “UNSUBSCRIBE” to the number sending the message. After such, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive text messages for a short period while we process your request. After opting out of receiving text messages, you can re-enroll in any Bento text messaging program by following the instructions for that program.
Bento does not charge for text messaging programs, but message and data rates may apply both for any messages sent to you from or on behalf of Bento, as well as messages you send to us. If you have any questions about your text plan or data plan, contact your wireless provider.
By providing your cell phone number to Bento, you warrant that you are the current subscriber for that number or that you are authorized to receive texts to that phone number. If you change, forfeit, or deactivate the phone number you have provided to Bento, you agree to notify Bento immediately. You agree to indemnify, defend, and hold us harmless from any third-party claims, liability, damages or costs arising from your use of the Service or from you providing us with a phone number that is not your own.
10. Termination
You may terminate your use of the Services at any time by sending an e-mail to support@gobento. In Bento’s sole discretion, Bento has the right, for any reason or no reason, to terminate your access to and use of the Services, immediately effective upon informing you of such termination either through an SMS communication or other means. Upon termination of your access to or use of the Services by either party, your right to access and use the Services will terminate immediately. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of your access to and use of the Services, or this TOS.
11. General
These TOS constitute the entire agreement between you and Bento and govern your use of the Services, superseding any prior agreements between you and Bento with respect to the Services. These TOS will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth in Section 8 above, you and Bento agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within California. The failure of Bento to exercise or enforce any right or provision of these TOS will not constitute a waiver of such right or provision. If any provision of these TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this TOS and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this TOS to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this TOS without the prior written consent of Bento, but Bento may assign or transfer this TOS, in whole or in part, without restriction. The section titles in these TOS are for convenience only and have no legal or contractual effect. Under no circumstances shall Bento be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control. The Services may also provide notices to you of changes to these TOS or other matters by displaying notices or links to notices generally on the Services.
12. Questions? Concerns? Suggestions?
Please contact us at legal@gobento.com with any questions regarding this TOS.