Last Revised: April 8th, 2019
THESE TERMS ESTABLISH AN AGREEMENT WITH YOU, AND YOU AGREE TO BE BOUND BY THESE TERMS UPON THE EARLIER OF: (A) VISITING THIS WEBSITE; (B) CLICKING THE “ACCEPT” OR “AGREE” SELECTOR; OR (C) ORDERING, PAYING FOR, RECEIVING OR USING ANY PRODUCTS OR SERVICES THAT WE OFFER THROUGH THIS WEBSITE. NOTE: THESE TERMS INCLUDE A WAIVER OF THE RIGHT TO A JURY TRIAL.
1.2 For our operations, we may include links in the Environment that connect you to websites, online portals, ecommerce stores, mobile applications or other electronic user interfaces owned by third parties (collectively, “Third Party Sites”). In some cases, the Third Party Sites may have an appearance that matches our Environment to help create a seamless experience. These Terms apply to the Third Party Sites.
1.3 You may be bound by additional agreements depending upon your relationship with us. For example, you may have ordered or used our products or services under separate terms, conditions or agreements accessible in the Environment or Third Party Sites (collectively, “Additional Agreements”). If so, you will be bound by these Terms as well as the Additional Agreements. If any provisions of the Additional Agreements conflict with any provisions of these Terms, the provisions of these Terms will control and prevail.
1.4 Dino reserves the right to change these Terms from time to time without notice. You acknowledge and agree that it is your responsibility to review these Terms periodically to familiarize yourself with any modifications. Your continued use of the Environment after such modifications will constitute your acknowledgement of and agreement to the modified Terms.
The marks, logos, slogans, symbols and designs displayed on the Environment are the trademarks, service marks, trade dress and designs of Dino or its affiliates or licensors. All graphical user interfaces, content, text, images, photos, works, audio recordings, videos, data, information and resources accessible within the Environment and Third Party Sites (collectively, “Resources”) are owned by Dino or its affiliates or the licensors of Dino and its affiliates. The Resources are protected by United States and international copyright laws and other intellectual property laws. You will not use, copy, reproduce, perform, display, distribute, embed into any electronic medium, alter, reverse engineer, decompile, transfer, download, transmit, sell, market or commercialize in any form, such trademarks, service marks, trade dress, designs or Resources without the express prior written consent of Dino. All rights are reserved by Dino. Your violation of any such restrictions may subject you to penalties and liabilities under copyrights laws, trademark laws, and civil and criminal statutes.
If you have any intellectual property (including, without limitation, concepts, ideas, inventions, works of authorship, information, suggestions, and proposed product improvements) that you would like to present to Dino, you will not submit such intellectual property to Dino unless you and Dino have first signed a written agreement regarding the disclosure of such intellectual property to Dino. If you disclose any such intellectual property to Dino absent such written agreement, Dino will have a perpetual, irrevocable, worldwide, transferrable, sublicensable, royalty-free, paid-up, non-exclusive license to use, reproduce, distribute, perform, display, create derivatives of, modify, make, use, sell, offer for sale, import, export and commercialize such intellectual property. Such license will automatically become effective when you make such disclosure to Dino absent such written agreement.
4.1 The term, “Third Party Property,” as used in these Terms, means: (a) domain names, URLs, websites (such as Third Party Sites and other websites), online portals, mobile applications and other electronic user interfaces owned by third parties; and (b) content (such third party Resources and other content), materials, information, products and services of third parties, including users, advertisers, affiliates and sponsors of the Environment.
4.2 The Environment may provide you with access to Third Party Property within the Environment. Also, the Environment may include links to Third Party Sites accessible outside of the Environment. If we include a link in the Environment to a Third Party Site, we may take one or more of the following approaches to notify you that such link will direct you to a third party’s website:
(a) the link (or image or content associated with the link) will display or output the name, brand, trademark or logo of the applicable third party; and/or
(b) the Environment will display a popup message indicating that you will be departing the Environment.
4.3 Dino will not be responsible for any Third Party Property or for any changes or updates to Third Party Property. You bear all risks associated with the access to, lack of access to, and use of, Third Party Property and any related third party services. Please review the terms and conditions of the applicable third party.
You will not interrupt or attempt to interrupt the operation of the Environment in any way. You will not link the Environment to another website, nor will you link any other website to the Environment. Notwithstanding the foregoing, you may forward the Environment addresses to others who may be interested in visiting the Environment.
6.1 By visiting the Environment and accessing the Resources, either directly or indirectly, you agree to use our Resources only for the purposes intended and as permitted by these Terms, any Additional Agreements with Dino, the terms of our affiliates, and applicable laws, regulations and generally accepted online practices and industry guidelines.
6.2 To access our Resources, you may be required to provide certain information about yourself (such as identification, contact details, etc.) as part of the registration process, or as part of your ability to use the Resources. You agree that any information you provide will always be accurate, correct, and up to date.
6.3 Accessing, or attempting to access, any of our Resources by any means other than through the means we provide, is strictly prohibited. You specifically agree not to access, or attempt to access, any of our Resources through any robotic, automated, hacking, unethical or unconventional means.
6.4 Engaging in any activity that disrupts or interferes with our Resources, including the servers and/or networks to which the Resources are located or connected, is strictly prohibited. Attempting to reverse engineer, decompile, modify, copy, duplicate, reproduce, publicly perform, publicly display, distribute, lease, sell, trade, resell or commercialize any of the Resources is strictly prohibited.
You are responsible for all activities that occur under any user accounts provided by Dino. You may be required to choose a password and a user name. Access to and use of password-protected or secure areas of the Environment are restricted to authorized users only. You agree not to share your passwords, account information, or secured access to the Environment with any other person. You are responsible for maintaining the confidentiality of passwords and account information, and you are responsible for all activities that occur through the use of your passwords or accounts or as a result of your access to the Environment. You agree to notify Dino immediately of any use of your passwords or accounts that you did not authorize or that violates these Terms.
Dino may provide various open communication tools on the Environment, such as blog comments, blog posts, public chat, forums, message boards, newsgroups, product ratings and reviews, various social media services, etc. You understand that it might not be feasible for Dino to pre-screen or monitor all content posted by users of these various communication tools, which means that if you choose to use these tools to submit any type of content to the Environment, then it is your personal responsibility to use these tools in a responsible and ethical manner. By posting information or otherwise using any open communication tools as mentioned, you agree that you will not upload, post, submit, share, or otherwise distribute any content that:
(a) is illegal, threatening, defamatory, abusive, harassing, bullying, degrading, intimidating, fraudulent, deceptive, invasive, racist, sexist, hateful or offensive, or contains any type of suggestive, inappropriate, or explicit language or images;
(b) infringes on any trademark, patent, trade secret, copyright, or other proprietary right of any party;
(c) contains any type of unauthorized or unsolicited advertising; or
(d) impersonates any person or entity, including any of our employees or representatives.
Dino has no obligation to monitor the Environment or screen the content that is shared by you or others on or through the Environment. However, Dino reserves the right to review the Environment and content and to monitor all use of and activity on the Environment, and to remove or reject any content in its sole discretion. Dino may remove confidential or proprietary content of a third party that has been uploaded or submitted without that third party’s permission.
If the Environment enables you or others to share or submit content, we recognize the risk that such content could cause copyright infringement. The United States Copyright Act (“Copyright Act”) provides service providers like Dino with a limitation of liability regarding any such infringement. Accordingly, pursuant to 17 U.S.C. § 512 of the Copyright Act, we provide the information and procedures set forth below in this Section 10.
10.1 Designated Agent
The following is the contact information of our designated agent (“Designated Agent”) to receive notices of copyright infringement:
Dinosaur Restaurants, LLC
234 W. Genesee Street
Syracuse, New York 13202
Phone No.: 1-888-476-1662
Email Address: firstname.lastname@example.org
10.2 Infringement Notice
If you or any other party (“Complaining Party”) concludes that the use or display of any materials or works on the Environment is infringing upon any copyrights, the Complaining Party may send a written notice to the Designated Agent (“Infringement Notice”). The Infringement Notice, to be effective, must include the following:
(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) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Dino to locate such material;
(d) information reasonably sufficient to permit Dino to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address at which the Complaining Party may be contacted;
(e) a statement that the Complaining Party has 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 that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receiving an Infringement Notice from a Complaining Party in accordance with Section 10.2 above, Dino will respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
10.4 Notice of Takedown; Replacement
If you are a subscriber of Dino and Dino removes or disables access to materials provided by you in accordance with Section 10.3 above, Dino will:
(a) take reasonable steps promptly to notify you that Dino has removed or disabled access to the material;
(b) upon receipt of a counter notification from you (in accordance with Section 10.5 below), promptly provide the applicable Complaining Party with a copy of the counter notification, and inform such Complaining Party that Dino will replace the removed material or cease disabling access to it within ten (10) business days; and
(c) replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of the counter notice, unless the Designated Agent first receives notice from the applicable Complaining Party indicating that such Complaining Party filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on our system or network.
10.5 Counter Notice
If you, a subscriber of Dino, wish to provide a counter notification, you must provide the counter notification in writing to the Designated Agent. The counter notification, to be effective, must include substantially the following:
(a) your physical or electronic signature;
(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which Dino may be found, and that you will accept service of process from the applicable Complaining Party or an agent of such Complaining Party.
Dino may, in its sole discretion, at any time discontinue providing the Environment (or any portion thereof) or limit access to the Environment, any areas of the Environment or any Resources. Also, Dino may, in its sole discretion, at any time, terminate or limit your access to, or use of, the Environment or any Resources if Dino suspects that you have infringed upon the rights of a third party, violated these Terms, or engaged in any wrongdoing. You agree that Dino will not be liable to you or any third party for any termination or limitation of your access to, or use of, the Environment or any Resources, including content that you may have shared.
THE FOLLOWING PROVISIONS OF THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
13.1 THE ENVIRONMENT AND ALL RESOURCES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DINO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE ENVIRONMENT AND ALL RESOURCES. DINO MAKES NO WARRANTY THAT: (A) THE ENVIRONMENT OR RESOURCES WILL MEET YOUR REQUIREMENTS; (B) THE ENVIRONMENT WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE ENVIRONMENT OR ANY RESOURCES WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY RESOURCES PURCHASED OR OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS.
13.2 ANY RESOURCE ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED ON OR THROUGH THE ENVIRONMENT IS USED AT YOUR OWN DISCRETION AND RISK. DINO WILL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF RESOURCES.
13.3 DINO RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO, AND MONITOR THE USE OF, THE ENVIRONMENT AND RESOURCES AT ANY TIME WITHOUT NOTICE.
THE FOLLOWING PROVISIONS OF THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
14.1 IN NO EVENT WILL DINO BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THE ENVIRONMENT OR ANY RESOURCES.
14.2 EXCEPT TO THE EXTENT ANY ADDITIONAL AGREEMENT EXPRESSLY STATES OTHERWISE, DINO’S MAXIMUM LIABILITY TO YOU FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE ENVIRONMENT, THE RESOURCES OR ANY PRODUCTS AND SERVICES MARKETED OR SOLD THROUGH THE ENVIRONMENT, REGARDLESS OF THE FORM OF LEGAL ACTION THAT IMPOSES LIABILITY (WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT, TORT OR OTHERWISE) WILL BE LIMITED TO THE TOTAL PRICE THAT YOU PAID TO DINO TO PURCHASE SUCH PRODUCTS OR SERVICES OR USE THE ENVIRONMENT. SUCH LIMIT WILL APPLY IN THE AGGREGATE TO ALL OF YOUR CLAIMS, ACTIONS AND CAUSES OF ACTION OF EVERY KIND AND NATURE.
15.2 We are committed to making the content we provide through the Environment accessible to individuals with disabilities in accordance with our Accessibility Policy. If you have a disability and are unable to access any portion of the Environment or Resources due to your disability (“Incident”), you agree to: (a) immediately give us written notice of the Incident in accordance with Section 22 below; and (b) include a detailed description of the Incident in your notice. We will accept your notice through a writing submitted by your guardian, caretaker or agent on your behalf. After receiving your notice, we will: (i) promptly investigate the Incident; (ii) promptly resolve the issue causing the Incident if the issue is readily identifiable and resolvable in accordance with industry-standard information technology tools and techniques; and (iii) provide you with a reply, setting forth our remedial steps and findings.
Persons who are not of the age of majority are not eligible to use the Environment, and we ask that no information in relation to such persons be submitted to us.
You may not access, download, use or export the Environment, or the content provided on or through the Environment, in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all export laws, restrictions and regulations of any United States or applicable agency or authority, and to not directly or indirectly provide or otherwise make available any Resources of Dino in violation of any such restrictions, laws or regulations, including, without limitation, laws, restrictions or regulations pertaining to the development, design, manufacture or production of nuclear, chemical or biological weapons or missile technology. As applicable, you will obtain and bear all expenses related to any necessary licenses, authorizations, and/or exemptions with respect to your own use of the Resources outside the U.S. Neither the Resources nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, into any country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By agreeing to these Terms, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Resources and information in the Environment may reference or cross-reference Dino’s products, programs or services that might not be available in your location. Such references do not imply that Dino commits or plans to make such products, programs, or services available.
The failure of Dino to exercise or enforce any rights or provisions in these Terms will not constitute a waiver of such right or provision.
If any part or provision of these Terms is found to be unenforceable under applicable law, such part or provision will be modified to make these Terms, as modified, legal and enforceable. The balance of these Terms will not be affected.
21.1 Definitions. For the purposes of this Section 21: (a) the term “Dispute” will mean any dispute, controversy, claim, or cause of action arising out of or relating to: (i) these Terms or any Additional Agreement, the interpretation thereof, or the breach, termination, applicability or validity of these Terms or any Additional Agreement; (ii) the Environment, the Resources or any product or service marketed or sold through the Environment; or (iii) any other dispute arising out of or relating to the relationship between you and Dino; (b) the term “Dino Group” will mean Dinosaur Restaurants, LLC, its parents, subsidiaries, affiliates, stockholders, directors, officers, employees, agents, suppliers, beneficiaries, assignees, and successors in interest; and (c) the term “Your Group” will mean you and those in privity with you, such as your beneficiaries.
21.2 Binding Election of Court of Law or Arbitration
(a) Action Initiated by Dino. If Dino elects to initiate a legal proceeding arising from a Dispute with you, Dino will have the right to resolve the Dispute through a court of law under Section 21.3 below or through binding arbitration under Section 21.4 below. Dino will have the right to make this election of court of law or arbitration at its sole discretion.
(b) Action Initiated by You. If you elect to initiate a legal proceeding arising from a Dispute with Dino, you will provide Dino with written notice of such Dispute, specifying and describing the Dispute in detail. Within thirty (30) days after receiving such Dispute, Dino may provide you with a written response and thereafter, Dino and you will endeavor to resolve such Dispute amicably. If the parties fail to resolve such Dispute within thirty (30) days after Dino’s response, you may provide Dino with written notice of your decision to initiate a legal proceeding. After receiving such notice, Dino will have the right to select, at its sole discretion, whether such proceeding will occur through a court of law under Section 21.3 below or through binding arbitration under Section 21.4 below. Dino may notify you of Dino’s selection within ten (10) business days after receiving your notice. If Dino does not notify you of such selection within such period, you will have the right to resolve the Dispute solely through binding arbitration under Section 21.4 below, not through a court of law.
21.3 Court of Law. If any Dispute is to be resolved by a court of law in accordance with Section 21.2 above, the terms of this Section 21.3 will apply. The governing law will be the laws of the State of New York, excluding its conflict of law principles. The State and Federal courts located in Onondaga County of New York will have sole and exclusive jurisdiction over such Dispute. Your Group and the Dino Group hereby waive all claims of immunity from such jurisdiction. Venue for such Dispute will be in Onondaga County of New York. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH MEMBER OF YOUR GROUP AND THE DINO GROUP HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN SUCH DISPUTE. THIS WAIVER WILL BE IRREVOCABLE AND PERPETUAL; PROVIDED, HOWEVER, THAT IF DINO INITIATES SUCH DISPUTE BASED ON THE INFRINGEMENT OF DINO’S INTELLECTUAL PROPERTY RIGHTS, DINO WILL RETAIN THE RIGHT TO TRIAL BY JURY FOR SUCH DISPUTE. EACH OF YOU AND DINO UNDERSTANDS AND ACKNOWLEDGES THAT: (A) IN THE ABSENCE OF THIS SECTION 21.3, SUCH PARTY WOULD HAVE HAD A RIGHT TO LITIGATE ACTIONS THROUGH A JURY TRIAL; AND (B) THIS WAIVER IS A SUBSTANTIVE PROVISION BARGAINED BY YOU AND DINO AS CONSIDERATION FOR ENTERING INTO THESE TERMS.
21.4 Arbitration. If any Dispute is to be resolved by arbitration in accordance with Section 21.2 above, the terms of this Section 21.4 will apply.
(a) No Lawsuit. No member of the Dino Group or Your Group will submit the applicable Dispute to any court of law. Dino Group and Your Group hereby forfeit their right to file and litigate a lawsuit in a court of law relating to such Dispute. You understand that, in the absence of this Section 21.4, you would have had a right to litigate disputes through a court, including the right, if any and subject to the rules of your jurisdiction, to litigate claims on a class-wide or class-action basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH MEMBER OF YOUR GROUP AND THE DINO GROUP HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THOSE RIGHTS AND ALL RIGHT TO TRIAL BY JURY IN CONNECTION WITH SUCH DISPUTE. EACH SUCH MEMBER AGREES TO RESOLVE SUCH DISPUTE SOLELY THROUGH BINDING ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 21.4. YOU AGREE AND ACKNOWLEDGE THAT SUCH WAIVER IS A SUBSTANTIVE PROVISION BARGAINED BY YOU AND DINO AS CONSIDERATION FOR ENTERING INTO THESE TERMS. This arbitration provision will be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq.
(b) American Arbitration Association. You and Dino may each provide one another with written notice of any intention to initiate arbitration with respect to any Dispute that is subject to arbitration in accordance with Section 21.4(a) above. If you and Dino do not amicably resolve or settle such Dispute in writing within thirty (30) days after such notice, the notifying party will have the right to submit such Dispute to the American Arbitration Association (“AAA”) for binding resolution. Any such Dispute will be resolved exclusively and finally by the AAA. You and Dino will agree upon another arbitration forum if AAA ceases all of its operations. The arbitration will be conducted before a single arbitrator and will be limited solely to the applicable Dispute between you and Dino. The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis.
(c) Election of Arbitrator. You and Dino will confer after service of written notice of arbitration to select a single, agreed-upon arbitrator to arbitrate the applicable Dispute. If you and Dino are unable to agree upon an arbitrator within thirty (30) days after the date of such notice, the AAA will assign an arbitrator. Any decision or award rendered in such arbitration proceeding will be final and binding on the Dino Group and Your Group, and judgment may be entered thereon only in the State or Federal courts in Onondaga County of New York.
(d) Substantive Law; Limitations on Award; Place; Language. In the arbitration, the arbitrator will apply the laws of the State of New York, excluding its conflict of law principles. The arbitrator will not have the right to award treble damages, punitive damages or attorneys’ fees to the prevailing party. The location of the arbitration will be in Onondaga County of New York, and the arbitration will be conducted in the English language. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the applicable Dispute.
(e) AAA Contact Information. Information may be obtained from the AAA online at www.adr.org or by calling the phone number or writing to the address specified at such website.
You may contact us regarding these Terms through our Contact page or by writing or emailing us at the following address:
Dinosaur Restaurants, LLC
234 W. Genesee Street
Syracuse, New York 13202
Email Address: email@example.com
We may update these Terms from time to time. The date provided at the beginning of these Terms is the latest revision date of these Terms. To request a prior version of these Terms, please contact us in accordance with Section 22 above.