Terms and Conditions

Effective: January 7, 2025

PLEASE READ THESE CONSUMER TERMS AND CONDITIONS CAREFULLY. THESE CONSUMER TERMS AND CONDITIONS (“AGREEMENT,” “TERMS AND CONDITIONS,” or “TERMS”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND ZESTA, AS DEFINED BELOW.

 

1. Application of this Agreement

 

This Agreement governs your access to and use of the Technology and Services (each as defined below) and is between you and Zesta. “Zesta, “we,” “us,” and “our” mean Verbosec, Inc., a Delaware corporation, and its subsidiaries and affiliated companies, including, without limitation, the entities listed in the remainder of this paragraph. With respect to United States Orders (as defined below), these Terms and Conditions constitute a legal agreement between you and Verbosec, Inc. and/or its subsidiaries and affiliated companies. With respect to Botswana Orders (as defined below), these Terms and Conditions constitute a legal agreement between you and Verbosec (Pty) Ltd. and/or its subsidiaries and affiliated companies.  With respect to South African Orders (as defined below), these Terms and Conditions constitute a legal agreement between you and Verbosec South Africa (Pty) Ltd. and/or its subsidiaries and affiliated companies.

 

Certain provisions of this Agreement apply based on the country of your primary residence or the country in which you have selected a delivery or pickup address, and such provisions are designated as such using one or more of the following definitions:

• “Botswana Consumer” means your primary residence is in Botswana.
• “Botswana Order” means you have selected a delivery or pickup address in Botswana.
• “South Africa Consumer” means your primary residence is in South Africa.
• “South Africa Order” means you have selected a delivery or pickup address in South Africa.
• “United States Consumer” means your primary residence is in the United States.
• “United States Order” means you have selected a delivery or pickup address in the United States.

2. Acceptance of this Agreement

Zesta operates an online marketplace and connection platform to (a) broker the exchange of goods and services among you and other consumers, restaurants and other businesses (“Merchants”), and independent third-party contractors who provide delivery and/or other services (“Contractors”); and (b) provide you with access to information on the Services. Zesta’s Technology permits consumers to place orders for food and/or other goods from Merchants, either for delivery or pickup, and/or request services from Merchants. If a delivery order is made, Zesta uses the Technology to notify Contractors (or, for certain orders, Merchants) that a delivery opportunity is available and to facilitate completion of the delivery to the consumer. If a pickup order is made, Zesta uses the Technology to communicate with the consumer regarding the availability of the order for pickup. Zesta is not a merchant, retailer, restaurant, grocer, delivery service, or food preparation business (except as otherwise specified in Section 6 below).

 

If you access any of our websites located at https://zesta.one, install or use the Zesta mobile application, install or use any other technology supplied by Zesta (collectively, the “Technology”), access or use any information, function, feature, or service made available or enabled by Zesta (collectively, the “Services,” which includes the Technology), click or tap a button or take similar action to signify your affirmative acceptance of this Agreement, or complete the Zesta account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that: (a) you have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at https://about.zesta.com/terms/ or through the Technology; (b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Zesta; and (c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization for whom you have created an account or been named as the User during the Zesta account registration process and to bind such organization to the Agreement.

 

The specific Services or information available to you may vary based on the delivery or pickup address that you have selected. A certain function, feature, or Service (y) available to one User may not be available to all Users or at all times, and (z) may only be available in the latest version of the Zesta mobile application. “User” means any individual or other person who accesses or uses the Services with or without an account (whether directly or through tools, services, or other means), including, without limitation, any organization that registers an account or otherwise accesses or uses the Services through its respective employees, agents, or 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.

3. Modifications

Subject to Section 14(k) of this Agreement, Zesta reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Technology or Services at any time, effective upon posting an updated version of this Agreement at about.zesta.one/terms/ or through the Technology. If we make any material changes to this Agreement, we will notify you by email at the email address that you have provided to us or by another means. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes. If you do not agree to this Agreement or any modifications to this Agreement, you should immediately cease using the Technology and Services.

4. Additional Terms and Policies

By using or accessing 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 Zesta’s Privacy Policy, which is incorporated in this Agreement by reference. You also agree to abide by any additional Zesta terms or policies for Users that are published on our website or mobile application, whether or not such terms or policies are directly referenced or linked elsewhere in this Agreement. Certain features of our Services may be subject to additional terms and conditions, which, to the extent permitted by applicable law, are incorporated herein by reference.

 

5. Rules and Prohibitions

Without limiting other rules and prohibitions in this Agreement, by using or accessing the Services (whether or not you have created an account or are logged into an account), you agree that:

 

(a) You will only use or access the Services for lawful purposes and you will not use or attempt to use the Services under false pretenses or for sending or storing any unlawful material or for deceptive or fraudulent purposes.

(b) You will only use or access the Services in accordance with all applicable laws, including copyrights, trade secrets, other intellectual property rights, or other rights of any third party, including privacy, personality, or publicity rights.

(c) You will only use or access the Services using means explicitly authorized by Zesta. If applicable, it is your responsibility to ensure you download the correct Technology for your device. We are not liable if you do not have a compatible device or if you have downloaded the wrong version of the Technology for your device. We reserve the right to terminate your use of the Technology and/or Services if you are using the Technology or Services with an incompatible or unauthorized device.

(d) You will not use or attempt to use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.

(e) You will not use or attempt to use the Services to cause nuisance, annoyance, or inconvenience.

(f) You will not use or attempt to use the Services, or any content accessible through the Services (including content accessible without being logged into your account), for any commercial purpose, including but not limited to contacting, advertising to, soliciting, or selling to any Merchant, User, or Contractor, unless Zesta has given you prior permission to do so in writing.

(g) You will not use or attempt to use the Services or content accessible through the Services without Zesta’s prior written consent in connection with the development of any software program, including, but not limited to, training a machine learning or artificial intelligence (AI) system or providing archived or cached data sets containing content accessible through the Services to another person or entity.

(h) You will not copy or distribute, or attempt to copy or distribute, the Technology or any content displayed through the Services, including any reviews or Merchants’ menu content or catalogs, for republication in any format or media.

(i) You will not directly or indirectly create or compile, or attempt to create or compile, any content or collection, compilation, or other directory from any content displayed through the Services except for your personal, noncommercial use.

(j) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.

(k) You will keep secure and confidential your account password and any other login or identification credentials you use to access the Services.

(l) You will use the Technology and Services only for your own use and will not directly or indirectly resell, license, or transfer the Technology, Services, or content displayed through the Services (including content accessible without being logged into your account) to a third party.

(m) You will not use or attempt to use the Services in any way that could damage, disable, overburden, or impair any Zesta server or the networks connected to any Zesta server.

(n) You will not attempt to gain unauthorized access to any part of the Technology or the Services and/or to any account, resource, computer system, and/or network connected to any Zesta server.

(o) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Zesta may use to prevent or restrict access to the Services or use of the Services or the content therein, and you will not attempt any of the foregoing.

(p) You will not use, access, or collect content, data, information, or materials published or available on the Services—including, but not limited to, text, photographs, images, illustrations, designs, audio clips, video clips, “look and feel,” metadata, data, or compilations—using automated means unless Zesta has given you prior permission to do so in writing.

(q) You will not deep-link to our websites or access our websites manually or with any robot, spider, script, web crawler, extraction software, automated process, service, tool, and/or device to scrape, copy, index, frame, or monitor any portion of our Services or websites or any content on or available through our Services or websites, and you will not attempt any of the foregoing.

(r) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services (including content accessible without being logged into your account), and you will not attempt any of the foregoing.

(s) You will not engage in conduct that harms, attempts to harm, or threatens the safety of other Users, Merchants, Contractors, Zesta, Zesta employees, or our community in any way whatsoever, and you will take reasonable steps to prevent the foregoing.

(t) You will not engage in threatening, harassing, racist, or sexist behavior or any other behavior that Zesta deems inappropriate when using the Services.

(u) You will report any errors, bugs, unauthorized access methodologies, or any breach of our intellectual property rights that you uncover in your use of the Services.

(v) You will not abuse or attempt to abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time Users.

(w) Your participation in using and access to the Services is for your sole, personal, or internal business use.

(x) You will not falsely or fraudulently claim that your order or items from your order were missing, incorrect, of poor quality, defective, or never delivered and you will return any order mistakenly delivered to you if requested by Zesta, a Merchant, or a Contractor.

(y) You will not, in connection with your use of the Services and/or the Zesta platform: (i) ask a Contractor to purchase or deliver any goods or perform any services not ordered through the Zesta platform; or (ii) give or offer to give any goods to a Contractor related to your Zesta order.

 

In the event that we believe or determine that you have breached any of the aforementioned or any other provision of these Terms, we reserve the right to suspend and/or permanently deactivate your account or take other appropriate action at our sole discretion. Where required by law, we will provide you with written notice of the suspension or deactivation of your account, including the reasons which led us to take such action. Engaging in any prohibited use of the Services may result in criminal, civil, and/or administrative penalties, fines, or sanctions against the User and those assisting the User.

6. Contractors and Merchants Are Independent

(a) You understand and agree that Zesta provides the Services to connect you with independent Merchants that provide the products and services offered through the Services, and independent third-party Contractors who provide delivery and other services. You acknowledge and agree that Zesta is not a merchant, retailer, restaurant, grocer, pharmacy, chemist, delivery service, or food preparation business, and has no responsibility or liability for the acts or omissions of any Merchant or any Contractor. Merchants are the retailers of the products or services offered through the Services. Zesta is not in the delivery business, does not provide delivery services, and is not a common carrier. Zesta provides the Services to facilitate the transmission of orders by Users to Merchants, including orders for pickup or delivery by Contractors and/or Merchants. Any delivery, pickup, or preparation times displayed through the Services are purely estimates and do not represent a promise, commitment, or guarantee by Zesta. Zesta will not assess or guarantee the suitability, legality, or ability of any Contractor or Merchant. You agree that Zesta is not responsible for Merchants’ food preparation or product offerings, food or product handling, or the safety of the food or other products, or whether the photographs, images, menu or product listings, catalog, item descriptions, or other menu, product, or catalog information (including nutrition, ingredient, and/or allergen information) displayed through the Services accurately reflect the goods and services sold by Merchants and/or delivered by the Contractor and/or Merchant, and does not verify Merchants’ compliance with applicable laws or regulations. You also acknowledge and agree that menu, product, or catalog listings, descriptions, or other information (including photographs or images or nutrition, ingredient, and/or allergen information) displayed through the Services may not have been provided directly by the Merchant. Zesta 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 and/or Merchant will be directed by your instructions to transport the products to your designated delivery location. You agree that neither the Contractor nor Zesta holds title to or acquires any ownership interest in any goods that you order through the Services. You must not do anything which seeks to create an encumbrance, lien, charge, or other interest in or over the goods that you order until title has passed to you.

 

7. 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 or through your device. 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 account, 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 Zesta immediately. Zesta will not be liable, and you may be liable, for losses, damages, liability, expenses, and fees incurred by Zesta or a third party arising from someone else using your account. If you provide any information that is untrue, inaccurate, not current, or incomplete, or if Zesta has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Zesta 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 set of login credentials to use the Zesta and/or Verbosec services. You agree not to create an account or use the Services if you have been previously removed from the Zesta platform by Zesta or if you have been previously banned from use of the Services.

 

8. User Content

 

(a) User Content. Zesta may provide you with interactive opportunities through the Services, including, by way of example, the ability to post content on the Zesta platform or otherwise provide to Zesta Ratings and Reviews (each as defined below), Feedback (as defined below), or other text, photos, images, or audio and video content (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 submitted, posted, and/or otherwise transmitted through the Services by you or someone on your behalf or through your User account does not (i) violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) contain material that is false, intentionally misleading, deceptive, defamatory, offensive, abusive, or pornographic, including material that racially or religiously vilifies, incites violence or hatred, or is likely to insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation, or any physical or mental disability; (iii) contain sexually explicit or violent content or photos, images, or videos of weapons, illegal drugs, or hate symbols; (iv) contain any material that is unlawful or relates to unlawful conduct (including phishing and spoofing); (v) create a privacy or security risk to any person, including by soliciting personal information from any person, or contain any confidential, sensitive, private, or personally identifiable information; (vi) solicit money from any person; (vii) contain financial, legal, medical, or other professional advice; (viii) harm, abuse, harass, stalk, threaten, or otherwise offend; (ix) reflect negatively on Zesta, including Zesta’s goodwill, name, and reputation; (x) tamper with, hinder the operation of, or make unauthorized modifications to our websites or Technology; (xi) otherwise result in civil or criminal liability for you, Zesta, or any third party; (xii) violate any law or regulation; or (xiii) violate this Agreement or any community or content guidelines that Zesta may publish from time to time (including but not limited to our Content Guidelines). You hereby grant Zesta (including Zesta’s service providers) a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use the User Content in connection with Zesta’s business and in all forms now known or hereafter invented (collectively, “Uses”), without notification to and/or approval by you. You further grant Zesta a license to use your username, first name and last initial, profile photo (if available), and/or other User profile information, including, without limitation, your ratings history, to attribute User Content to you in connection with such Uses, without notification to or approval by you. You acknowledge, however, that Zesta has no obligation to attribute any User Content to you in connection with any Use. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to Zesta herein shall survive termination of the Services or your account. Zesta reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. You agree that Zesta may monitor and/or delete your User Content (but does not assume the obligation to do so) or may decide to not publish, display, or otherwise make available your User Content for any reason at Zesta’s sole discretion. Zesta may also access, read, preserve, and disclose any information as Zesta reasonably believes is necessary to satisfy any applicable law, regulation, legal process, or governmental request; enforce this Agreement, including investigation of potential violations hereof; detect, prevent, or otherwise address fraud, security, or technical issues; respond to User, Contractor, or Merchant support requests; or protect the rights, property, or safety of Zesta, our Users, and the public. We may aggregate your publicly viewable User Content and certain other information about you onto a User profile viewable by anyone, which you can choose to make public (meaning your publicly viewable User Content will be displayed on your profile) or restricted (meaning only certain information about you and your User Content will be displayed on your profile, such as the number of Reviews and photos you’ve submitted but not their contents).

(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to Zesta through its suggestion, feedback, wiki, forum, or similar pages (“Feedback,” which is considered User Content) is at your own risk and that Zesta 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 Zesta (including Zesta’s service providers) a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use such Feedback.

(c) Ratings and Reviews. To the extent that you rate or post reviews of Merchants or other businesses, which may include but is not limited to text, photos, images, audio, or videos that you provide (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by Zesta and do not represent the views of Zesta or its affiliates. Zesta shall have no liability for Ratings and Reviews or for any claims of 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 acknowledge and agree that: (i) you will base any Rating or Review on first-hand experience with the Merchant or business; (ii) you will not provide a Rating or Review for any Merchant or business for which you have an ownership interest, employment relationship, or other affiliation or for any competitor of such a Merchant or business; (iii) you will not submit a Rating or Review in exchange for payment, free food items, or other benefits from a Merchant or business; (iv) for United States Orders, any Rating or Review you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; (v) for Canada Orders, any Rating or Review you submit will comply with the Competition Bureau’s Enforcement Guidelines and Advertising Standards Canada’s Interpretation Guideline for Testimonials, Endorsements and Reviews; (vi) your Rating or Review will comply with the terms of this Agreement; (vii) we may decide to not publish, display, or otherwise make available your Rating or Review for any reason in our sole discretion; (viii) any Rating or Review you submit will comply with our Content Guidelines; (ix) a Rating, Review, or photo displayed in connection with a restaurant may reflect an in-person dining experience; and (x) a Rating, Review, or photo may not have originally been submitted on the Zesta platform and/or may not have been submitted by a Zesta customer. If we determine, in our sole discretion, that any Rating or Review could diminish the integrity of the Ratings and Reviews or otherwise violates this Agreement, we may remove such Rating or Review without notice and take any additional action, in Zesta’s sole discretion, as we deem necessary or appropriate.

 

9. Communications with Zesta

By creating a Zesta account or using the Technology or Services, you agree to: (a) accept and receive communications from or on behalf of Zesta, Contractors, Merchants, partners, and/or third parties providing services to you or Zesta, including via email, text message, direct message, chat, and calls, to the contact information you provide to Zesta when registering an account or using the Technology or Services; and (b) receive communications via push notification or in-app messages in the Zesta mobile application. Further, you understand and agree that you may receive communications (e.g., calls, text messages, etc.) that are generated by an automatic telephone dialing system, and/or which will deliver prerecorded or automated messages, sent by or on behalf of Zesta and Merchants (e.g., Merchants facilitating the delivery of your order), including but not limited to communications concerning orders you place through your account on the Services. For clarification, you acknowledge and agree that you will receive communications from Contractors who are facilitating your receipt of the benefit of the Services (including multimedia messaging service (“MMS”) messages to confirm the delivery of your order). Message and data rates may apply and message frequency may vary. The communications in this Section 9 may include, without limitation, commercial or marketing messages (see Section 24 for information about consumer marketing text messages), transactional or relationship messages (e.g., messages about the availability of our services (e.g., interruptions in service), security and/or fraud (e.g., password reset messages), safety, responses to communications initiated by you, updates to policies/legal agreements (e.g., privacy policies, terms of service)), newsletters, and messages relating to research, political advocacy, or customer support (those initiated by you and by us). You acknowledge that receiving commercial or marketing messages or calls is not a requirement or condition for you to use the Services. For purposes of clarity, any message (including text message) or call you may receive from us, a Merchant, or a Contractor regarding an order is a transactional message, not a commercial, marketing, or promotional message or call. If there are changes to your contact information (e.g., email address, phone number), you agree to update your account to help prevent or limit Zesta inadvertently communicating with someone else.

 

The opt-out options for communications are set out below. If you opt out of receiving communications via one channel, that opt out will only apply to the specific channel for which the opt out is submitted (e.g., if you opt out of receiving email communications, it will not apply to any other channels through which communications can be sent). Please see the following for more information:

• For email communications that permit opting out (e.g., commercial/marketing messages), there is an opt-out mechanism in the messages. For transactional or relationship email messages, the only opt-out option is to delete your account.
• To opt out of receiving transactional or relationship text messages (e.g., order updates), you can: (x) toggle or slide off this type of message in your account settings; (y) reply “STOP” to a text message you receive. For MMS messages sent by Contractors to confirm the delivery of your order, you cannot opt out of receiving these messages unless you stop using the Services and delete your account.
• For phone calls, you can submit a request to be added to Zesta’s internal do not call list by making the request during the call or help center.
• For push notifications, you can toggle or slide off these notifications in the mobile application.
• To opt out of all communications, the only option is to delete your account.

Review the Zesta Privacy Policy for more information about Zesta’s privacy practices, contact information, and opt-out options.

 

You authorize your wireless carrier to use or disclose information about your account and your wireless device, if available, to Zesta or its service provider for the duration of your business relationship, solely to help them identify you or your wireless device and to prevent fraud. See our Privacy Policy for how we treat your data.

10. Electronic Records

By creating a Zesta account or using the Technology or Services, you consent to the use of electronic records. You also agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zesta provides to you electronically satisfy any legal requirement for such communications to be in writing. You agree to keep your contact information, including email address, current. This paragraph does not affect your statutory rights.

To view and retain a copy of this Agreement, you will need (a) a device (such as a computer or mobile phone) with a web browser and Internet access, and (b) either a printer or storage space on such device.

 

11. Intellectual Property Ownership

Zesta alone (and its licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Technology and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Technology or the Services, or any intellectual property rights owned by Zesta. Zesta names, Zesta logos, and the product names associated with the Technology and Services are trademarks of Zesta 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 Technology or the Services.

 

12. Payment Terms

 

(a) Prices and Charges. You understand that: (i) the prices for menu or other items displayed through the Services may differ from the prices offered or published by Merchants for the same menu or other items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu or other items are sold and may change at any time without notice; (ii) Zesta has no obligation to itemize its costs, profits, or margins when publishing such prices; and (iii) pricing may change at any time, in the discretion of Zesta or the Merchant (depending on which party sets the given price). For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in-store totals. In those situations, Zesta reserves the right to temporarily authorize or place a hold on your payment method for an amount that may be greater than the amount shown at checkout and to charge your payment method the final price after checkout. You are liable for all transaction taxes (other than taxes based on Zesta’s income), including sales tax, use tax, goods and services tax, and other transaction taxes if applicable, on the Services provided under this Agreement. If transaction taxes, including sales tax, use tax, goods and services tax, and other transaction taxes, are applicable, Zesta reserves the right to charge you additional amounts on account of such taxes. In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, Zesta reserves the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by Zesta and/or its payments processor, using the preferred payment method designated in your account. If your payment details change, you or your card provider may provide us with updated payment details. We may use these new details or details from other payment methods on file in order to help prevent any interruption to your use of the Services. This includes our right to charge any payment method on file if your initial form of preferred payment fails. It is your responsibility to keep your billing information up to date.

(b) Strikethrough Pricing. Zesta may use strikethrough pricing for certain items (for example, when presenting a discount or promotional price for items). Zesta does not represent that the strikethrough price was the regular or former price of items for any particular period of time and the time period may vary widely depending on the items. Zesta may also rely on Merchants or a third party to provide information about the regular or former price of items offered by those Merchants or a third party, and Zesta’s strikethrough price therefore may represent the price that Zesta, a Merchant, or a third party offered the item for sale for some period of time. The strikethrough price may also be an introductory price that was offered for a short period of time. Unless otherwise specified, the strikethrough price represents a non-member discount to the extent the Merchant has a membership program.

(c) Refunds

 

Charges paid by you for completed and delivered orders, or for orders confirmed by a Merchant, are final and non-refundable. Zesta has no obligation to provide refunds or credits but may grant them gratuitously at Zesta’s sole discretion in each case. You may be required to provide identification information and/or a signature upon pick up and/or receipt of certain orders, as communicated at the time you place your order; if you fail to provide the required identification information or signature for such an order, you agree and acknowledge that we will not honor any claim that your order was not delivered and you may be subject to a non-refundable Undeliverable Item Fee. The Merchant will be liable for any major or minor problems with Merchant orders for which they are responsible, though Zesta may assist, at its sole discretion, with remedies such as refunds or credits.

In order to make a claim for a refund or credit, please follow the procedures set out in the Technology or Services.

(d) Promotional Offers and Credits. Zesta, at its sole discretion, may make promotional offers with different features and different pricing 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: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public, unless expressly permitted by Zesta; (iii) are subject to the specific terms that Zesta establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer or in Zesta’s Promotional Offers and Credits Terms and Conditions, which is, to the extent permitted by applicable law, incorporated in this Agreement by reference. Zesta reserves the right to withhold or deduct credits or benefits obtained through a promotion, or to charge additional amounts that would have applied to the transaction had the promotion not applied, in the event that Zesta determines or believes on reasonable grounds that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. Where required by law, we will provide you with written notice of any such withholding or deduction, including the reasons which led us to take such action. Zesta reserves the right to modify or cancel an offer at any time. Zesta’s Promotional Offers and Credits Terms and Conditions apply to all promotional offers. You agree that we may change the Promotional Offers and Credits Terms and Conditions at any time. Zesta may also offer gratuitous credits, which can be used for the Services; such credits include, without limiting the foregoing, any credits earned through the Zesta consumer referral program (the “Referral Program”). The Referral Program is governed by Zesta’s Referral Program Terms and Conditions, which are incorporated herein by reference. You agree that we may change the Referral Program Terms and Conditions or terminate the Referral Program at any time. Any credit issued by Zesta under this Section 12(d) is valid for 6 months from the date of issue, except as otherwise stated in the promotional offer or to the extent prohibited under applicable law, and may not be redeemed for cash or cash equivalent; however, your credits may expire earlier if your account is deactivated or deleted. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order. Credits issued to a User’s Zesta account may only be used on that respective brand’s Services.

(e) Fees for Services. Zesta may change the fees that Zesta charges you as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, Expanded Range Fees, Regulatory Response Fees, and Surge Fees. Zesta may offer different pricing to customers based on a variety of factors, including but not limited to geographic areas or usage. Zesta may also charge you additional fees as required by law. Further, Zesta may 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. Zesta may charge you a Service Fee for the convenience of ordering through the Zesta platform. None of the Service Fee, Delivery Fee, Small Order Fee, Surge Fee, or any other fee charged to you by Zesta is for any right to access, install, or use any Technology.

(f) Gift Cards. Gift cards are governed by Zesta’s Gift Card Terms and Conditions, which are incorporated herein by reference. Except as provided below, gift cards may be redeemable towards eligible orders placed on zesta.one or in the Zesta mobile application. Gift cards are not redeemable for cash except when required by applicable law. Once a gift card is redeemed, the amount of the gift card is converted into credits linked to your account, and such credits may be used towards eligible Zesta or, if applicable, Verbosec orders. While credits from gift cards do not expire, you will lose access to such credits if your account is deactivated or deleted. Credits issued to a User’s Zesta account may only be used on that respective brand’s Services.

 

13. ZestaPass Subscriptions

 

(a) General. ZestaPass is an automatically renewing subscription requiring recurring payments until canceled. A ZestaPass subscription grants you access to certain benefits (“ZestaPass Benefits”) on eligible orders placed through the Services for eligible Merchants with a minimum subtotal (excluding taxes, fees, and tips) as indicated through the Services. For certain Zesta orders that may have alternative fee structures (for example, a flat Zesta fee), ZestaPass Benefits may vary. Zesta reserves the right to change whether a Merchant is eligible for ZestaPass at any time with or without notice. ZestaPass orders are subject to delivery driver and geographic availability, and taxes may apply to the cost of the items you order and/or to fees charged. You may provide an optional gratuity. Service Fees and other fees may apply. We reserve the right to add and modify fees that may apply to your ZestaPass orders.

ZestaPass is offered for a monthly or yearly fee payable at the start of the relevant period. By signing up for ZestaPass, you agree that: (i) you will be charged your first ZestaPass subscription fee and any applicable taxes (such as sales tax, use tax, goods and services tax, and other transaction taxes) on the date you purchase your ZestaPass subscription or, if your subscription includes a free trial, on the day after your free trial ends; (ii) you authorize Zesta and its service providers to store your payment method for the purpose of executing future ZestaPass auto-renewal transactions; (iii) UNLESS YOU CANCEL, BY DEFAULT (AND WITH PRIOR NOTICE ONLY TO THE EXTENT REQUIRED BY APPLICABLE LAW), YOUR ZESTAPASS SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD; and (iv) AT THE TIME OF RENEWAL, ZESTA WILL AUTOMATICALLY CHARGE THE THEN-CURRENT ZESTAPASS SUBSCRIPTION FEE AND ANY APPLICABLE TAXES TO AN ELIGIBLE PAYMENT METHOD THAT WE HAVE ON FILE FOR YOU. If your payment details change, your card provider may provide us with updated payment details. We may use these new details or details from other payment methods on file in order to help prevent any interruption to your ZestaPass subscription. This includes our right to charge any payment method on file if your initial form of preferred payment fails. It is your responsibility to keep your billing information up to date. If any subscription fee is not paid in a timely manner or your transaction cannot be processed, we reserve the right to suspend, disable, cancel, or terminate your access to the Services or your ZestaPass subscription. Where required by law, which may include in the Province of Québec, we will provide you with written notice of the suspension, disabling, cancellation, or termination of your access to the Services or your ZestaPass subscription, including the reasons which led us to take such action. You will be responsible for paying all past due amounts.

(b) Corporate ZestaPass Subscriptions. Notwithstanding any other provision in these Terms, you may be eligible for a complimentary ZestaPass subscription when your employer registers for a corporate ZestaPass subscription. If you have a complimentary ZestaPass 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 canceled. 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 or tap the activation button.

(c) ZestaPass Student Plan. Zesta may offer ZestaPass student plan subscriptions at a discounted price on either a monthly or annual basis to qualifying individuals who meet the eligibility requirements stated at sign up, including but not limited to current enrollment at an accredited college or university. Individuals may be required to provide documentation so that Zesta may verify their eligibility for a ZestaPass student plan. ZestaPass student plan subscriptions are subject to this Agreement and Zesta’s Promotional Offers and Credits Terms and Conditions.

(d) Trial or Promotional Subscriptions. From time to time, Zesta may offer some customers trial or other promotional subscriptions to ZestaPass, whether directly from Zesta or in partnership with a third party. Such trial or promotional subscriptions are available only for Users who have not previously subscribed to ZestaPass (whether on a free or paid plan) and are subject to this Agreement and Zesta’s Promotional Offers and Credits Terms and Conditions except as otherwise stated in the promotional offer. If you do not cancel your free trial or promotional subscription within the trial or promotional pricing period, you agree to purchase a paid ZestaPass subscription at the then-current fee. When your free trial or promotional pricing period has expired, your subscription will automatically convert into a paid, automatically renewing ZestaPass subscription, and Zesta will bill you the applicable fee (plus applicable taxes, such as sales tax, use tax, goods and services tax, and other transaction taxes) unless you cancel. If you cancel ZestaPass before the trial period has expired, Zesta will not charge you for the ZestaPass subscription. If you purchase a ZestaPass subscription with a promotional code, each time your ZestaPass subscription renews, you will be charged the full billing amount. Only one trial or promotional subscription is available per household. If your ZestaPass subscription is ever terminated for any reason, you shall not be eligible for a free trial on any subsequent ZestaPass subscription.

(e) ZestaPass Gift Subscriptions. Zesta may offer customers the opportunity to purchase ZestaPass gift subscriptions (“ZestaPass Gift Subscriptions”) and then send these ZestaPass Gift Subscriptions to other customers to redeem (“Gift Subscription Recipients”). Such ZestaPass Gift Subscriptions are subject to this Agreement and the ZestaPass Gift Membership Terms and Conditions. ZestaPass Gift Subscriptions can only be purchased and redeemed by Users who have or create a valid Zesta account with a valid form of accepted payment on file. A ZestaPass Gift Subscription entitles the Gift Subscription Recipient to a ZestaPass subscription for the length of time identified in the ZestaPass Gift Subscription confirmation (the “ZestaPass Gift Subscription Period”).

ZestaPass Gift Subscriptions are issued by the following entities: Zesta Giftcards LLC in the United States; Zesta Technologies Canada, Inc. in Canada; Zesta Technologies Australia Pty Ltd in Australia; and Zesta Technologies New Zealand in New Zealand.

ZestaPass Gift Subscriptions cannot be redeemed by ZestaPass subscribers currently enrolled in any free, paid, or discounted partnership subscription plan (“Excluded Subscription Plans”). Any Gift Subscription Recipients of a ZestaPass Gift Subscription currently enrolled in an Excluded Subscription Plan may choose to transfer their ZestaPass Gift Subscription to another customer. For Gift Subscription Recipients enrolled in an eligible existing paid ZestaPass subscription at the time of redemption of a ZestaPass Gift Subscription, such eligible existing paid ZestaPass subscription will continue through the end of the Gift Subscription Recipient’s current ZestaPass billing cycle before the ZestaPass Gift Subscription will be applied. For Gift Subscription Recipients enrolled in an eligible existing ZestaPass subscription currently in a free period at the time of redemption of a ZestaPass Gift Subscription, the ZestaPass Gift Subscription will be applied immediately upon redemption and any unused days in the previous free period will be forfeited.

For all Gift Subscription Recipients, after the ZestaPass Gift Subscription Period ends, that subscription will automatically convert into a paid monthly ZestaPass subscription, and Zesta will charge the Gift Subscription Recipient the applicable monthly fee to the preferred payment method designated in the Gift Subscription Recipient’s Zesta account. All purchases of ZestaPass Gift Subscriptions are final and non-refundable.

(f) Cancellations. When you cancel a ZestaPass subscription, you cancel only future charges associated with your ZestaPass subscription. You may initiate your cancellation at any time through the Services, but the cancellation will become effective at the end of your current subscription period.  You must cancel at least one (1) day before the next-scheduled subscription renewal date to avoid being charged for the next subscription period (for example, if the renewal date is January 10, you must cancel by 11:59:59 pm on January 9).

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

For both monthly and annual subscribers, if you cancel your ZestaPass subscription within the first 48 hours of your first subscription period and have not placed a ZestaPass-eligible order during that period, Zesta may, in its sole discretion, refund your ZestaPass fee. If we issue a refund, credit, or discount, we are under no obligation to issue the same or similar refund in the future.

 

14. Arbitration Agreement

 

THIS SECTION 14 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”

 

(a) Scope of Arbitration Agreement. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before, on, or after the effective date of this Agreement. You agree that any dispute or claim arising out of or relating in any way to the subject matter of the Agreement, to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Zesta 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 Zesta as a User of our Services (this includes, without limitation, any contract claim, tort claim, statutory claim, or claim for unfair competition), will be resolved by binding arbitration, rather than in court, except as otherwise required by law—such as individual claims for sexual assault or sexual harassment arising from use of the Services by United States Consumers—or as otherwise provided in this Arbitration Agreement. In addition, to the extent permitted by applicable law, either you or Zesta may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Either you or Zesta may also, to the extent permitted by applicable law, apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual. The following additional jurisdiction-specific exception to the foregoing applies to United States, Australia, and New Zealand Consumers only:

(i) United States and New Zealand Consumers Only. You may assert claims in small claims court or tribunal if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.

CASES HAVE BEEN FILED AGAINST ZESTA—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 ZESTA, 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 ZESTA IN 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 Zesta agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. You and Zesta therefore agree that, before either you or Zesta demands or attempts to commence 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. For sake of clarification only, the informal dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference, unless mutually agreed to by the parties. 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 their 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 Zesta that you intend to initiate an informal dispute resolution conference, email [email protected], providing your name, telephone number associated with your Zesta account (if any), the email address associated with your Zesta account, and a description of your claim. Zesta may then send you an Informal Dispute Resolution Conference Request form, which you must fill out completely to initiate the informal dispute resolution conference. 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

(i) United States Consumers Only. 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 certify completion of the informal dispute resolution conference pursuant to Section 14(b). If this notice is being sent to Zesta, it must be sent by email to the counsel who represented Zesta 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. Once the notice certifying completion of the informal dispute resolution conference has been served, the party seeking to arbitrate must then file their arbitration demands with ADR Services, Inc. The demand must include (A) the name, telephone number, mailing address, and email address of the party seeking arbitration; (B) a statement of the legal claims being asserted and the factual bases of those claims; (C) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (D) the signature of the party seeking arbitration. Disputes shall be subject to ADR Services, Inc.’s most current version of its Arbitration Rules, available as of September 20, 2024 at www.adrservices.com/services/arbitration-rules or by calling ADR Services, Inc. at 310-201-0010. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available as of September 20, 2024 at www.adrservices.com/rate-fee-schedule/. Specifically, the fees set forth in ADR Services, Inc.’s Mass Consumer Non-Employment Arbitration Fee Schedule shall apply when twenty (20) or more arbitration claims are filed which: (X) involve the same or similar parties; (Y) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; and (Z) involve the same or coordinated counsel for the parties. In all other circumstances, the fees set forth in ADR Services, Inc.’s General Fee Schedule shall apply, except that Zesta will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s rules. If the arbitrator finds that you cannot afford to pay ADR Services, Inc.’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver of fees from ADR Services, Inc., Zesta will pay them for you. Any finding that a claim or counterclaim violates the standards set forth in Federal Rule of Civil Procedure 11 shall entitle the other party to recover their attorneys’ fees, costs, and expenses associated with defending against the claim or counterclaim. If a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68 or a state or local equivalent, if applicable, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party shall pay the costs, including filing fees, incurred after the offer was made.

If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. You may choose to have the arbitration conducted by telephone, video conference, or in person in the county where you live or at another mutually agreed location. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by applicable law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.

If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of September 20, 2024 at www.jamsadr.com/appeal/.

(ii) Canada Consumers Only (Except Those who Reside in the Province of Québec). To the extent permitted by applicable law, this Arbitration Agreement is governed by the domestic arbitration act in the province in which you reside and ADR Institute of Canada, Inc.’s Arbitration Rules (adric.ca/case-administration-services/) (“ADRIC Rules”) as applicable, in all respects except as otherwise expressly agreed herein. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certify completion of the informal dispute resolution conference pursuant to Section 14(b). If this notice is being sent to Zesta, it must be sent by email to the counsel who represented Zesta in the informal dispute resolution process, or if there was no such counsel, then by mail to General Counsel, Zesta at 1066 West Hastings Street, Suite 2000, Vancouver BC V6E 3X2, Canada; and [email protected]. Arbitration demands shall be filed with ADR Institute of Canada, Inc. (“ADRIC”) and shall be submitted in accordance with the ADRIC Rules and must include: (A) the name, telephone number, mailing address, and email address of the party seeking arbitration; (B) a statement of the legal claims being asserted and the factual bases of those claims; (C) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (D) the signature of the party seeking arbitration. Your demand for arbitration must also be delivered to General Counsel, Zesta at 1066 West Hastings Street, Suite 2000, Vancouver BC V6E 3X2, Canada; and [email protected]. Notwithstanding anything to the contrary in the ADRIC Rules, the arbitration shall be heard by a single arbitrator (selected in accordance with the ADRIC Rules), who shall be a lawyer or former judge. The seat of the arbitration shall be the capital city of the province of your primary residence as of the effective date of this Agreement. However, at your request, the arbitration hearing may take place at a location that is within 45 kilometres of your primary residence as of the effective date of this Agreement. The parties agree that the arbitration may proceed virtually, and the arbitrator has the discretion to order a virtual arbitration at the request of either party. Unless applicable law provides otherwise, you and Zesta shall pay equal shares of the applicable filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings. Zesta shall pay any additional costs uniquely associated with arbitration, such as payment of the costs of ADRIC and the Arbitrator, as well as room rental or technical assistance required to support a virtual arbitration. The current fee schedule under the ADRIC Rules is available at the following link: adric.ca/case-administration-services/. If ADRIC is not available to arbitrate, the parties will mutually select an alternative arbitral forum.

(iii) Australia Consumers Only. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, General Counsel, at Level 15, 222 Exhibition Street, Melbourne VIC 3000 Australia. The arbitration will be conducted by the Australian Disputes Centre (“ADC”) under then-current arbitration rules and pursuant to the terms of this Agreement. The ADC’s arbitration rules are available at: www.disputescentre.com.au/adc-rules-for-domestic-arbitration. Payment of all filing, administration, and arbitration fees will be governed by the ADC’s rules. If the arbitrator finds that you cannot afford to pay the ADC’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver of fees from the ADC, Zesta will pay them for you. In addition, Zesta will reimburse all such ADC’s filing, administrative, hearing, and/or other fees for claims with an amount in controversy totaling less than AUD $10,000. If the ADC is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.

(iv) New Zealand Consumers Only. This Arbitration Agreement is governed by the Arbitration Act 1996 and Schedule 2 of the Arbitration Act 1996 will not apply to any arbitration. Where you are a “consumer” for the purposes of the Arbitration Act 1996, this agreement to arbitrate is subject to a separate written agreement after the dispute has arisen in accordance with section 11 of the Arbitration Act 1996.

(d) Arbitrator Powers. The arbitrator, and not any federal, state, provincial, 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, to the extent permitted by applicable law except with respect to Section 14(f) below (Waiver of Class, Consolidated, and Representative Actions; Waiver of Public Injunctive Relief), the enforceability of which can only be determined by a court. 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 or arbitration administrator. The arbitration will decide the rights and liabilities, if any, of you and Zesta. Except as expressly agreed to in Section 14(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 may issue orders (including subpoenas to third parties, to the extent permitted by law) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes. For example, the arbitrator shall preclude oral discovery of either party’s current or former high-level officers absent a showing that the officer has unique, personal knowledge of discoverable information and less burdensome discovery methods have been exhausted. 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 Zesta.

(e) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND ZESTA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Zesta are instead electing to have all disputes resolved by arbitration, except as specified in Section 14(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

(f) Waiver of Class, Consolidated, and Representative Actions; Waiver of Public Injunctive Relief (United States, Canada, and New Zealand Consumers Only). THIS SECTION14(f) DOES NOT APPLY TO AUSTRALIA CONSUMERS. EXCEPT AS EXPRESSLY AGREED TO IN SECTION 14(g) OF THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND ZESTA 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, COLLECTIVE, OR REPRESENTATIVE BASIS EXCEPT AS SET FORTH IN SECTION 14(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 14(g). In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) a civil court of competent jurisdiction finds all or part of the Waiver of Class, Consolidated, and Representative Actions is unenforceable, the class, collective, or representative action must be litigated in a civil court of competent jurisdiction, but the portion of the Waiver of Class, Consolidated, and Representative Actions that is enforceable shall be enforced in arbitration. The portion of such dispute proceeding in court shall be stayed pending the conclusion of the arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of the waivers set forth in Section 14(f) is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. This provision does not prevent you or Zesta from settling claims on a class, collective, or representative basis.

(g) Batch Arbitrations. To the extent permitted by applicable law, to increase efficiency of resolution, in the event 100 or more similar arbitration demands against Zesta, presented by or with the assistance or involvement 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: (A) the parties shall cooperate to group the arbitration demands into randomized batches of no more than 100 demands per batch (plus, to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); (B) claimants’ counsel shall organize and present the batched demands to the arbitration provider in a format as directed by the arbitration provider; (C) the arbitration provider shall provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch; and (D) the arbitration provider shall send one set of disclosures per batch and will set up one Arbitration Management Conference per batch. You agree to cooperate in good faith with Zesta and the arbitration provider to implement such a batch approach to resolution and fees. Disagreements over the applicability of this batch arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this Section 14(g). Notwithstanding any provision in the Agreement to the contrary, batch arbitrations shall take place in San Francisco, California or, if the parties prefer, by video conference. The parties may also agree to conducting arbitration based on written submissions alone.

(h) Opt Out. Zesta’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 Zesta’s or Caviar’s Terms and Conditions and did not validly opt out of arbitration. Zesta 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 Zesta or Caviar account for the first time on or after the effective date of these Terms and Conditions, you may opt out of this Arbitration Agreement. If you do so, neither you nor Zesta can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Zesta in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Zesta username (if any), the email address you currently use to access your Zesta account (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: [email protected]. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.

(i) No Effect on Independent Contractor Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND ZESTA RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A CONTRACTOR, OPTING OUT OF THE ARBITRATION AGREEMENT SET FORTH IN SECTION 14 HAS NO EFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH ZESTA.

(j) Survival. This Arbitration Agreement will survive any termination of your relationship with Zesta.

(k) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Zesta makes 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 Zesta.

(l) Entire Agreement; Severability. This Arbitration Agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Agreement. In the event any portion of this Arbitration Agreement is deemed unenforceable, the remainder of this Arbitration Agreement will be enforceable.

 

15. Third-Party Interactions

 

(a) Third-Party Websites, Applications, and Advertisements. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”), and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites and Advertisements”). When you click or tap on a link to a Third-Party Website, Third-Party Application, or Third-Party Advertisement, Zesta will not warn you that you have left Zesta’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 and Advertisements are not under the control of Zesta. Zesta is not responsible for any Third-Party Websites and Advertisements. Zesta provides links to these Third-Party Websites and Advertisements only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites and Advertisements or their products or services. You use all links in Third-Party Websites and 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 Technology and the Services is dependent on the third party from which you received the application license, such as the Apple or Android app store (each, an “App Store”). You acknowledge and agree that this Agreement is between you and Zesta and not with the App Store. Zesta, not the App Store, is solely responsible for the Technology and the Services, including the mobile application(s), the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (for example, product liability, legal compliance, or intellectual property infringement). In order to use the Technology 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 Technology or the Services. You agree to comply with, and your license to use the Technology and the Services is conditioned upon your compliance with, all applicable third-party terms or agreements (for example, the App Store’s terms and policies) when using the Technology or the Services. You represent and warrant that you are not located in a country that is subject to a United States Government embargo or similar laws of other countries where applicable, or that has been designated by the United States or Canadian Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any United States or Canadian 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.

16. Transactions Involving Alcohol and Other Age-Restricted Products

 

You may have the option to request delivery or pickup of alcohol products in some locations and from certain Merchants. You agree that you will only order alcohol products if you, the intended recipient, and anyone who may consume the alcohol products are of legal age to purchase and consume alcohol products in the relevant jurisdiction. You also agree that, upon delivery or pickup of alcohol products, the recipient of any alcohol products will provide valid government-issued identification proving the requisite legal age and that the recipient will not be intoxicated when receiving such products. If you order alcohol products, you understand and acknowledge that the order will only be delivered if the Merchant accepts your order. The person delivering alcohol may be legally obligated to refuse delivery pursuant to applicable federal, state, provincial, or local laws, rules, or regulations, including if the recipient is not of legal age, is visibly intoxicated, or is not physically present to accept the delivery, and will be prompted to refuse delivery if the recipient cannot provide a valid government-issued identification proving requisite legal age, is visibly intoxicated, or is not physically present to accept the delivery. If the delivery of alcohol products cannot be completed for one or more of these reasons, you agree and acknowledge that your purchase is non-refundable and you or the intended recipient may not receive any part of the applicable order, including any non-alcohol items that you may have purchased with your alcohol products, and you may also be subject to a non-refundable Undeliverable Item Fee. Alcohol is not available in all locations that are served by the Zesta platform. Alcohol may be removed from the platform for specific Users at Zesta’s sole discretion.

 

You may also have the option to request delivery or pickup of other age-restricted items from certain Merchants, such as certain over-the-counter medication or other products subject to applicable federal, state, provincial, or local laws, rules, or regulations or Merchant or Zesta policies requiring age verification. You agree that you will only order age-restricted items if you, the intended recipient, or anyone who may consume such products are of legal age to purchase the items. You also agree that, upon delivery or pickup of age-restricted items, the recipient will provide valid government-issued identification proving the requisite legal age for such age-restricted items. The person delivering age-restricted items will refuse delivery pursuant to applicable federal, state, provincial, or local laws, rules, or regulations, including if the recipient cannot provide a valid government-issued identification proving requisite legal age or is not physically present to accept the delivery. If the delivery of age-restricted items cannot be completed for one or more of these reasons, you agree and acknowledge that your purchase is non-refundable and you may not receive any part of your order, including items that are not age-restricted that you may have purchased with your age-restricted items, and you may also be subject to a non-refundable Undeliverable Item Fee.

 

17. Indemnification

To the extent permitted by law, you agree to indemnify and hold harmless Zesta and 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, legal and/or attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to, or resulting from (a) your User Content; (b) your misuse of the Technology or Services; (c) your breach of this Agreement or any representation, warranty, condition, or covenant in this Agreement; or (d) your violation of any applicable laws, rules, or regulations through or related to the use of the Technology or Services. In the event of any claim, allegation, suit, or proceeding alleging any matter potentially covered by the agreements in this Section 17, you agree to pay for the defense of the Indemnified Party, including reasonable costs and legal and/or attorneys’ fees incurred by the Indemnified Party. Zesta reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Zesta in asserting any available defenses. This Section 17 does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Technology or Services. You agree that the provisions of this Section 17 will survive any termination of your account, this Agreement, or your access to the Technology and/or Services.

 

18. Disclaimer of Warranties

UNITED STATES FEDERAL LAW AND SOME STATES, PROVINCES, AND OTHER JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE EXCLUSIONS IN THIS SECTION 18 MAY NOT APPLY TO YOU. SECTION 18 APPLIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE TECHNOLOGY AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE TECHNOLOGY AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. ZESTA WILL USE REASONABLE ENDEAVORS TO ENSURE THE TECHNOLOGY AND SERVICES ARE AVAILABLE AS MUCH OF THE TIME AS POSSIBLE, BUT DOES NOT GUARANTEE THEY WILL BE AVAILABLE ALL OF THE TIME. THE TECHNOLOGY AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT GUARANTEES, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, GUARANTEES, WARRANTIES, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, AND NON-INFRINGEMENT. ZESTA MAKES NO WARRANTIES, CONDITIONS, OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE TECHNOLOGY OR SERVICES, OR THE SERVICES, TECHNOLOGY, TEXT, GRAPHICS, OR LINKS.

 

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

 

AUSTRALIA AND NEW ZEALAND ORDERS: FOR AUSTRALIA AND NEW ZEALAND ORDERS, NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS, OR MODIFIES ANY GUARANTEE, TERM, CONDITION, WARRANTY, OR ANY RIGHT OR REMEDY IMPLIED OR IMPOSED BY ANY LEGISLATION WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED, INCLUDING: (a) FOR AUSTRALIA ORDERS, THE AUSTRALIAN CONSUMER LAW, WHICH CONTAINS GUARANTEES THAT PROTECT THE PURCHASERS OF GOODS AND SERVICES IN CERTAIN CIRCUMSTANCES; and (b) FOR NEW ZEALAND ORDERS, THE CONSUMER GUARANTEES ACT 1993 AND THE FAIR TRADING ACT 1986, WHICH CONTAIN GUARANTEES THAT PROTECT THE PURCHASERS OF GOODS AND SERVICES IN CERTAIN CIRCUMSTANCES (EACH, A “NON-EXCLUDABLE PROVISION”).

19. Internet Delays

The Technology and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as otherwise required by applicable law and subject to the Non-Excludable Provisions, Zesta is not responsible for any delays, delivery failures, damage, loss, injury, or other economic damage resulting from such problems.

20. Breach and Limitation of Liability

 

This Section 20 applies to the fullest extent permitted by applicable law, and some provisions in this Section 20 may not apply in certain jurisdictions.

 

(a) United States and Canada Consumers. This Section 20(a) applies to United States and Canada Consumers. 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 Technology and Services at low cost. You understand and agree to the limitations on remedies and liabilities set forth in this Section 20(a) to keep the Technology and Services simple and efficient, and costs low, for all Users.

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

(ii) Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZESTA SHALL 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 ZESTA’S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY IN THE UNITED STATES OR THE PROVINCE OF QUÉBEC IN CANADA.

 

(b) Australia and New Zealand Consumers

(i) Australia Consumers. THIS SECTION 20(b)(i) APPLIES TO AUSTRALIA CONSUMERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF ZESTA FOR BREACH OF ANY NON-EXCLUDABLE PROVISION IS LIMITED TO ONE OR MORE OF THE FOLLOWING AT ZESTA’S OPTION: (A) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (B) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

(ii) New Zealand Consumers. THIS SECTION 20(b)(ii) APPLIES TO NEW ZEALAND CONSUMERS.

(A) OUR SERVICES COME WITH CONSUMER GUARANTEES UNDER THE CONSUMER GUARANTEES ACT 1993. YOU ARE ENTITLED TO A REPLACEMENT OR REFUND FOR A FAILURE OF SUBSTANTIAL CHARACTER AND YOU MAY ALSO BE ENTITLED TO COMPENSATION FOR ANY OTHER REASONABLY FORESEEABLE LOSS OR DAMAGE. IF THE FAILURE IS NOT OF SUBSTANTIAL CHARACTER, YOU MAY BE ENTITLED TO: (1) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS, THE REPAIR OF THE GOODS, OR A REFUND IF THE GOODS CANNOT BE REASONABLY REPAIRED OR REPLACED; OR (2) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR A REFUND. THERE MAY BE OTHER REMEDIES AVAILABLE UNDER THE CONSUMER GUARANTEES ACT 1993, DEPENDING ON THE CIRCUMSTANCES. ZESTA’S LIABILITY IN RELATION TO ITS PROVISION OF THE SERVICES OR GOODS IS LIMITED TO THE REMEDIES THAT ARE PROVIDED PURSUANT TO THE NON-EXCLUDABLE PROVISIONS AND THE GUARANTEES SET OUT IN SECTION 20(b) OF THIS AGREEMENT.

(B) You agree and acknowledge that if you are in trade and acquire, or hold yourself out as acquiring, the goods or services (as applicable) for business purposes in terms of section 43(2) of the Consumer Guarantees Act 1993, then the Consumer Guarantees Act 1993 does not apply and that its non-application is fair and reasonable.

(C) To the extent permitted by law, where the goods or services (as applicable) are supplied in trade within the meaning of the Fair Trading Act 1986, the parties agree to contract out of sections 9, 12A, 13, and 14(1) of that Act.

(D) You agree and acknowledge that part 3 of the Contract and Commercial Law Act 2017 will not apply.

(E) You agree and acknowledge that you do not rely on the representations or other conduct by Zesta, including any of its officers, employees, and sales representatives, whether during negotiations prior to these Terms being entered into or at any time subsequent to the entry into the Agreement.

(iii) Cap on Liability (Australia and New Zealand Consumers). THIS SECTION 20(b)(iii) APPLIES TO AUSTRALIA AND NEW ZEALAND CONSUMERS. SUBJECT TO THE NON-EXCLUDABLE PROVISIONS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZESTA’S AGGREGATE LIABILITY UNDER ALL THEORIES OF LAW AND EQUITY (INCLUDING NEGLIGENCE) SHALL NOT EXCEED THE GREATER OF (A) AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO ZESTA IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF ZESTA FOR (Y) DEATH OR PERSONAL INJURY CAUSED BY ZESTA’S NEGLIGENCE OR WILLFUL MISCONDUCT, OR (Z) ANY INJURY CAUSED BY ZESTA’S FRAUD OR FRAUDULENT MISREPRESENTATION.

(iv) Disclaimer of Certain Damages (Australia and New Zealand Consumers). THIS SECTION 20(b)(iv) APPLIES TO AUSTRALIA AND NEW ZEALAND CONSUMERS. SUBJECT TO THE NON-EXCLUDABLE PROVISIONS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZESTA SHALL NOT BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY OR LOSS OR CORRUPTION OF DATA, GOODWILL, REVENUE, PROFITS, ANTICIPATED SAVINGS, USE, OR OTHER ECONOMIC ADVANTAGE), UNDER ANY THEORIES OF LAW AND EQUITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUCH LOSS OR DAMAGE WAS FORESEEABLE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 6 AND 12, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZESTA SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE, OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, OUR WEBSITES, THE TECHNOLOGY, OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE OUR WEBSITES, THE TECHNOLOGY, OR THE SERVICES, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY, OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY MERCHANT, CONTRACTOR, ADVERTISER, OR SPONSOR WHOSE ADVERTISING APPEARS ON OUR WEBSITES OR THE TECHNOLOGY, OR IS REFERRED BY THE TECHNOLOGY OR SERVICES, EVEN IF ZESTA AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

21. Exclusive Venue

 

(a) United States Consumers. If you are a United States Consumer, to the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Zesta agree that all claims and disputes arising out of or relating in any way to the subject matter of the Agreement, to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Zesta 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 Zesta as a User of our Services (this includes, without limitation, any contract claim, tort claim, statutory claim, or claim for unfair competition), will be litigated exclusively in the state or federal courts located in San Francisco County if you are a California citizen or resident, and in the United States District Court for the District in which you reside if you are not a California citizen or resident.

(b) Canada Consumers. If you are a Canada Consumer, except where prohibited by applicable law (which includes the Province of Québec), to the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Zesta agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the Superior Court of Justice or Federal Court of Canada residing in Toronto, Ontario.

(c) Australia and New Zealand Consumers. If you are an Australia or New Zealand Consumer, to the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Zesta irrevocably agree that all claims and disputes arising out of or relating to the Agreement will be litigated non-exclusively in: (i) for Australia Consumers, the state or federal courts located in the State of Victoria, Australia and the Commonwealth of Australia; and (ii) for New Zealand Consumers, the courts located in New Zealand.

 

22. Termination

If you violate this Agreement, Zesta 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, Zesta may modify or discontinue the Technology or Services, or may modify, suspend, or terminate your access to the Technology or the Services, for any reason, with or without notice to you and without liability to you or any third party. Where required by law, which may include in the Province ofQuébec, we will provide you with written notice of the suspension or termination of your access to the Technology or the Services, including of the reasons which led us to take such action. In addition to suspending or terminating your access to the Technology or the Services, Zesta reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal, or injunctive redress. Even after your right to use the Technology 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.

23. Procedure for Making Claims of Copyright Infringement

It is Zesta’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Zesta 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: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the specific location on the Services of the material that you claim is infringing, including enough information to allow Zesta to locate the material; (d) your address, telephone number, and email address; (e) a written 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 (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. This notice of a copyright infringement claim should be sent to Zesta’s Copyright Agent at the address set forth below, based on the country in which the copyright owner primarily resides or was formed:

Verbosec South Africa (Pty) Ltd.

Cape Town, South Africa

 

24. Consumer Marketing Text Messages

 

This Section 24 only applies to Consumers who request, agree, sign up, or otherwise consent to receive consumer marketing text messages (“Opt In”).

 

You authorize us to send consumer marketing text messages, including text messages sent via an automatic telephone dialing system, to the phone number associated with your Opt In. Consumer marketing text messages include, by way of example, messages that contain promotional offers or discounts, messages related to goods and services offered by Zesta, or messages informing you that you still have items in your shopping cart. You do not have to Opt In as a condition of purchase or signing up for, accessing, using, or continuing to use the Zesta platform. You confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number and that you are authorized to Opt In. If you change or deactivate your phone number, you agree to update your Zesta account to help prevent us from inadvertently communicating with anyone who acquires your prior phone number.

 

 

Message and data rates may apply. Message frequency may vary. We may stop sending consumer marketing text messages to you at any time with or without notice. See our Privacy Policy for how we handle your information. Carriers are not liable for delayed or undelivered messages.

 

25. General

 

(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Zesta, or any third-party provider as a result of this Agreement or use of the Technology or Services.

(b) Choice of Law. Without giving effect to any principles that provide for the application of the law of any other jurisdiction, this Agreement is governed by the laws of: (i) for United States Orders, the State of Delaware consistent with the Federal Arbitration Act; (ii) for Canada Orders, and except where prohibited by applicable law (which includes the Province of Québec), the Province of Ontario and the laws of Canada applicable therein; (iii) for Australia Orders, the State of Victoria, Australia; and (iv) for New Zealand Orders, New Zealand.

(c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid or unenforceable under applicable law, the invalidity or unenforceability of such provision shall not affect the validity or enforceability of the remaining provisions of this Agreement, which shall remain in full force and effect.

(d) Consumer Complaints. If you have a complaint about the Services, please visit our Customer Support page. For United States Consumers who are residents of the State of California, and in accordance with California Civil Code § 1789.3, you may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or by telephone at (800) 952-5210.

(e) Accessing and Downloading the Application from the Apple App Store. The following applies to any Technology accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):

(i) You acknowledge and agree that (A) the Agreement is concluded between you and Zesta only, and not Apple; and (B) Zesta, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(ii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(iii) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Zesta and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty or condition will be the sole responsibility of Zesta.

(iv) You and Zesta acknowledge that, as between Zesta and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (A) product liability claims; (B) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation.

(v) You and Zesta acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Zesta and Apple, Zesta, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

(vi) You and Zesta acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

(vii) Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

(f) Notice. Where Zesta requires that you provide an email address, you are responsible for providing Zesta with your most current email address. In the event that the last email address you provided to Zesta is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Zesta’s dispatch of the email containing such notice will nonetheless constitute effective notice. You agree that all agreements, notices, disclosures, payment or renewal notifications, and other communications that Zesta provides to you electronically (such as through email or posting through the Services, including in your Zesta account) satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. You may give notice to Zesta by visiting our Customer Support page and initiating a chat with us. Such notice shall be deemed given on the next business day after such notice is actually received by Zesta.

(g) 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 Zesta 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.

(h) Currency. Unless otherwise indicated, all prices and other amounts displayed through the Services are in the currency of the jurisdiction where delivery or pickup occurs.

(i) Use Only Where Legally Allowed. You shall not access or use any portion of the

Services if you are not legally allowed to do so where you are located.

(j) Subcontracting. Zesta may subcontract any of its obligations under this Agreement without your prior written consent.

(k) Variation of Websites or Technology. We may from time to time vary, modify, or discontinue, temporarily or permanently, any or all of our websites or the Technology.

(l) Language Versions. You acknowledge and agree that (i) the official language of these Terms is English and French for Canada Consumers who reside in the Province of Québec and English for all other consumers, (ii) any discrepancy or conflict between the official language version and any other language version will be resolved with reference to and by interpreting the official language version, and (iii) any other language version that we may make available is being provided only as a courtesy.

(m) 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 Zesta relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.

 

26. Contact Information

Zesta welcomes your questions or comments regarding this Agreement. Please find our contact information below:

 

United States:

Verbosec, Inc.

Middletown, Delaware

Telephone Number:

 

South Africa:

Verbosec South Africa (Pty) Ltd.

1055 West Hastings Street

Cape Town

Telephone Number: