TERMS OF SERVICE
Revised: November 17, 2017
This website is owned and operated by Cookery, LLC (“Cookery” or “us”). Cookery permits access to and use of its online information and communications platform that connects Chefs (defined below) who want to cook with Customers (defined below) that want someone else to cook for them, as well as related services that can be accessed from or through the website and associate domains of https://www.eatcookery.com, and any related mobile applications (collectively, the “Service”), subject to the terms and conditions in this Terms of Service (“TOS”). Cookery may, at its discretion, update the TOS at any time. The most current version of the TOS can be accessed and reviewed at the URL for this page or by clicking on the “Terms of Service” link within the Service or as otherwise made available by Cookery.
Please review the TOS carefully. By registering for an account or otherwise accessing or using the Service, you agree on behalf of yourself and (if applicable) your organization (“you”) to be bound by the TOS, including any updates or revisions posted here or otherwise communicated to you. If you do not agree to be bound by the TOS, do not access or use the Service.
THE TOS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOS (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 22 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
WITHOUT LIMITING ANYTHING CONTAINED IN THE TOS, INCLUDING, WITHOUT LIMITATION, SECTION 18, YOU UNDERSTAND AND AGREE THAT COOKERY MERELY PROVIDES A MARKETPLACE AND DOES NOT PROVIDE COOKING SERVICES OR CONTROL CHEFS OR CUSTOMERS YOU MAY INTERACT WITH THROUGH THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, COOKERY DISCLAIMS ALL WARRANTIES REGARDING THE COOKING SERVICES AND ASSUMES NO RESPONSIBILITY FOR THE QUALITY, TIMELINESS OR ANY OTHER ASPECT OF THE COOKING SERVICES.
You represent and warrant that you are: (a) over eighteen years of age or the age of majority in your jurisdiction, whichever is greater; (b) of legal age to form a binding contract; and (c) not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction.
(a) Cookery grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view materials within the Service.
(b) To the extent that the Service provides access to any online software, applications or other similar components, Cookery grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only in the form within the online platform provided by Cookery.
(c) Cookery may make available mobile apps for access to and use of certain components of the Service (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to the applicable end user license agreement for each app.
(d) All rights granted to you under this TOS are subject to your compliance with the TOS in all material respects and may only be exercised for your non-commercial personal or educational use. Your access to and use of the Service must further comply in all material respects with any usage guidelines posted by Cookery.
(a) “Chefs” are users of the Service that promote, offer and provide different cooking and food preparation services and experiences to Customers at such Customers’ location (including, but not limited to, a daily meal plan, hosting a party or cooking classes) (collectively, “Cooking Services”) through the Service. A Chef may use the Service to advertise his or her Cooking Services, and to offer and provide freelance or contract labor for Customers.
(b) “Customers” are Users that solicit Cooking Services from Chefs through the Platform.
(c) Certain additional terms are applicable based on your role. The “CHEFS” section below applies to you only insofar as you use the Platform as a Chef; the “CUSTOMERS” section applies only insofar as you use the Platform as a Customer; otherwise.
(a) You may browse the Service without a Cookery account (an “Account”), but some features may not be accessible unless you register. In registering for the Service and creating an Account, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Account Data”); and (ii) maintain and promptly update the Account Data to keep it true, accurate, current and complete. For Customers, Account Data includes, without limitation, valid credit card information, your name, billing address and telephone number. If you provide any information that is untrue, inaccurate, not current or incomplete, or Cookery reasonably suspects that you have done so, Cookery may suspend or terminate your account.
(b) You may create an account directly through the Service, or through your account with certain third-party social networking services, such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option, Cookery will create your account by extracting from your SNS Account certain personal information, such as your name, email address, and other personal information that your privacy settings on the SNS Account permit us to access.
(c) To, in the case of (i) Chefs, offer Cooking Services, or (ii) Customers, solicit Cooking Services, in each case, through the Service, you must create an Account.
(d) You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone. You agree to notify Cookery immediately of any unauthorized use of your account or password or any other similar breach of security.
(a) You acknowledge and agree that all information, data, data records, databases, text, software, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted, including, without limitation, menus, recipes and images of Chefs and food (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Cookery, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Cookery, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
(b) You acknowledge and agree that Cookery has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Cookery reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Cookery shall have the right to remove any Content that violates the TOS or that it deems objectionable.
(c) To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOS with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or otherwise infringe, dilute, misappropriate or otherwise violate the proprietary or intellectual property rights (including, without limitation, rights in copyrights, trademarks, privacy and publicity) or any other right of any other party.
(a) Cookery does not claim ownership of Your Content. However, you grant Cookery and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to provide the Service. You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(b) Except with respect to Your Content, you acknowledge and agree that, as between you and Cookery, Cookery owns all rights, title and interest (including, but not limited to, all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright and other intellectual property laws and treaties. Cookery reserves all rights not expressly granted to you.
(c) Except with respect to Your Content, you may not: (i) use, capture, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the TOS; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by Cookery; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; or (vi) remove or obscure any proprietary notice that appears within the Service.
(a) As a Customer, if you order Cooking Services through the Services you shall pay the applicable Chef the applicable fee for such Cooking Services (“Cooking Fee”) and you hereby authorize Cookery to charge the credit card associated with your Account for all such Cooking Fees. Cookery shall remit all received Cooking Fees to the applicable Chef, minus Cookery’s stated transaction fee equal to percentage of the Cooking Fee (“Service Fee”).
(b) In addition to the Cooking Fee, Customer shall reimburse Chef for all actual out-of-pocket grocery expenses incurred by Chef in providing Customer the applicable Cooking Services (“Grocery Fee”), and you hereby authorize Cookery to charge the credit card associated with your Account for all such Grocery Fees. Cookery shall remit all received Grocery Fees to the applicable Chef without deduction.
(c) As between Customer and Cookery, all Cooking Fees and Grocery Fees are non-refundable. Customer agrees and acknowledges that all disputes regarding the performance of the Cooking Services are between Customer and Chef.
(d) If, for any reason, your credit card company refuses to pay the amount billed for Cooking Fees or Grocery Fees, Cookery may, at its sole discretion, suspend or terminate your Account and require you to pay all overdue amounts by other means acceptable to Cookery. Cookery may charge a fee for reinstatement of suspended or terminated Accounts.
(a) You represent, warrant and covenant that if you order Cooking Services as a Customer through the Service you have and will maintain Homeowners, Renters or other appropriate insurance policies at the location Cooking Services will be performed with a minimum limit of $100,000 each occurrence and $400,000 annual aggregate bodily injury and property damage.
In connection with your access to or use of the Service, you shall not:
(a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
(b) impersonate any person or entity, including, but not limited to, Cookery personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(d) act in a manner that negatively affects the ability of other users to access or use the Service;
(e) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
(f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(g) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or substantially download, reproduce or archive any portion of the Service;
(h) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including, but not limited to, your user account and password; or
(i) violate any applicable local, state, provincial, federal or international law or regulation.
To access and use the Service as a Chef you must, and hereby, agree to the following:
(a) Chef agrees to perform all Cooking Services offered through the Service and accepted and paid for by a Customer.
(b) Chef will not, during or subsequent to the term of the TOS, use Cookery’s proprietary information, trade secrets, know-how or other business information disclosed to or accessed by Chef either directly or indirectly in writing or orally (collectively, “Confidential Information”) for any purpose whatsoever other than the performance of the Cooking Services or disclose Cookery’s Confidential Information to any third party. Chef further agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information. Notwithstanding the confidentiality obligations contained in this Section, pursuant to 18 U.S.C. §1833(b), Chef shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(c) Chef shall perform the Cooking Services in a good and workmanlike manner with due diligence and in full compliance with the terms and conditions of the TOS, all mutually agreed to specifications and acceptance criteria, and applicable law. Chef, at his/her expense, shall use reasonable efforts to correct any Cooking Services performed by Chef that do not conform with the foregoing warranty.
(d) It is the express intention of the parties that Chef is an independent contractor. Nothing in the TOS shall in any way be construed to constitute Chef as an agent, employee or representative of Cookery, and Chef shall perform the Cooking Services hereunder as an independent contractor. Chef agrees to furnish (or reimburse Cookery for) all tools and materials necessary to accomplish this contract, and shall incur all expenses associated with performance.
(e) CHEF ACKNOWLEDGES AND AGREES THAT CHEF IS OBLIGATED TO REPORT AS INCOME ALL COMPENSATION RECEIVED BY CHEF RELATING TO, OR ARISING OUT OF, THE TOS, AND CHEF AGREES TO AND ACKNOWLEDGES THE OBLIGATION TO PAY ALL SELF-EMPLOYMENT AND OTHER TAXES THEREON.
(f) Chef acknowledges and agrees and it is the intent of the parties hereto that neither Chef nor any employees or contractors of Chef receive any Cookery-sponsored benefits from Cookery either as a consultant or employee. Such benefits include, but are not limited to, paid vacation, sick leave, medical insurance, and retirement plan participation. If Chef is reclassified by a governmental agency or court as an employee, Chef will become a reclassified employee and will receive no benefits except those mandated by applicable law, even if by the terms of Cookery’s benefit plans in effect at the time of such reclassification Chef would otherwise be eligible for such benefits.
(g) Chef will indemnify and hold Cookery and its directors, officers, employees and shareholders from and against all claims, suits, investigations, proceedings, liabilities, damages, losses, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of suit, arising out of or in connection with (i) any negligent, reckless, intentionally wrongful or other act or omission of Chef, (ii) any determination by a governmental authority or court that Chef is not an independent contractor, or (iii) any breach by Chef of the TOS.
If you elect to provide or make available to Cookery any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), Cookery shall be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third-party. You agree that Cookery shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
Cookery reserves the right at any time to modify or discontinue the Service (or any portion thereof) with or without notice, and Cookery shall not be liable to you for any such modification or discontinuance.
You shall indemnify, defend and hold Cookery and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Cookery Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including, but not limited to, reasonable attorneys' fees, resulting from or arising out of your: (a) violation of the TOU or any law or regulation; or (b) violation of any rights of another party.
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COOKERY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
(b) THE COOKERY PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE CONTENT, WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
(c) WITHOUT LIMITING THE FOREGOING, ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
(a) YOU ACKNOWLEDGE AND AGREE THAT THE COOKERY PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE COOKERY PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE COOKERY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO COOKERY FOR ACCESS TO THE PORTION OF THE SERVICE AT ISSUE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
(b) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) In the event that you violate the TOS, all rights granted to you under the TOS shall terminate immediately, with or without notice to you. To the extent that your access to the Service arises from an Institution Agreement, such access shall terminate upon termination of the applicable Institution Agreement.
(b) Upon termination of the TOS for any reason: (i) Cookery, in its sole discretion, may remove and discard Your Content; and (ii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination.
The TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOS.
(a) ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Houston, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Cookery may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 17.
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated Nationals List.
You agree that, except as otherwise expressly provided in the TOS, there shall be no third-party beneficiaries to the TOS.
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Cookery’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Cookery’s Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
6319 5th Street
Bellaire, Texas 77401
The TOS constitutes the entire agreement between you and Cookery concerning your access to and use of the Service. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and Cookery with respect to such subject matter. The TOS may not be amended by you except in a writing executed by you and an authorized representative of Cookery. You may not assign or delegate any right or obligation under the TOS without the prior written consent of Cookery. Cookery may assign the TOS, in whole or in part, at any time. The failure of Cookery to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOS. Any prevention of or delay in performance by Cookery hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.