Terms of service

Last updated: June 2023

 

Welcome to Wonder and our Terms of Service (“Terms”). These Terms are important and affect your legal rights, so please read them carefully.

 

IMPORTANT NOTICE: THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW.

 

Wonder Group, Inc., doing business as “Wonder” (“Wonder,” “we,” “our”), operates the website located at www.wonder.com (“Site”) and the Wonder mobile applications (“App”) (each and together, and along with all content displayed and services provided therein, the “Service”). These Terms govern your access to and use of the Service. You accept and agree to these Terms by doing any one of the following:

 

  • Clicking to accept these Terms;

  • Accepting these Terms through any other legally enforceable method we specify; or

  • Indicating in any legally sufficient way that you agree to these Terms.

 

If you do not agree to these Terms, you may not access or otherwise use the Service.

 

All references to “you” or “your,” as applicable, mean the person that registers for, accesses, or uses the Service in any manner, and each of your heirs, assigns, and successors. If you use or access the Service on behalf of any other person or entity, you represent and warrant that you have the authority to bind that entity or person, your acceptance of the Terms will be deemed an acceptance by that entity or person, and “you” and “your” herein shall refer to that entity or person.

 

  1. Service Availability

 

The Service is only intended for use by people residing in the particular service areas to which we deliver (our “Service Area”). We don’t accept orders outside our Service Area, but we’ll expand and change our Service Area over time.

 

  1. Changes to the Terms of Service

 

Wonder reserves the right to modify these Terms or our policies relating to the Service, effective upon posting of an updated version of these Terms. You should regularly review these Terms, as your continued use of the Service after any such changes constitutes your agreement to such changes, provided that the foregoing does not apply to the arbitration or class action waiver provision in Section 17 below. If you do not agree to the updated Terms, you may not access or use the Service.

 

3.       Changes to the Service

 

We reserve the right to change and improve the features and functionality of the Service at any time and in our sole discretion. This includes adding, modifying or removing menu items, restaurants, Service Areas or other specific features and functionality and/or updating how our Service is provided. The Terms will apply to the updated version of the Service. Additionally, we reserve the right to suspend or terminate the Service altogether for any reason or no reason, without notice, at any time, and without liability to you.

 

  1. Eligibility

 

To use the Service, you must be, and you represent that you are, at least 18 years old and legally capable of entering into binding contracts. 

 

5.       Creating an Account; Electronic Communications

 

To access and use the Service, we may require you to first register for an account (“Account”). You agree to provide accurate, current, and complete information during the registration process, and to update such information to keep it accurate, current, and complete. If you create an Account, you agree that you will be liable (and understand that we will hold you liable) for any activity that occurs on your Account. We therefore urge you not to share your Account credentials with anyone.

 

By creating an Account, you consent to receive electronic communications from Wonder (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

 

6.       Privacy Policy

 

By using the Service, you agree to be bound by these Terms and acknowledge and agree to the collection, use, disclosure and other handling of your personal information in accordance with Wonder’s Privacy Policy. 

 

7.       General Rules and Prohibitions

 

Without limiting any other rules and prohibitions in these Terms, by using the Service, you agree to comply with all applicable laws, rules, and regulations when registering for, accessing, or using the Service, and you agree that you will not:

 

  • Engage in fraud or misuse of the Service.

  • Post, upload, publish, submit, or transmit any content that:

    • Infringes, misappropriates, or violates any patent, copyright, trademark, trade secret, or other intellectual property right, or any right of publicity or privacy, of any person;

    • Encourages conduct that would violate any applicable law or regulation or could give rise to civil or criminal liability;

    • Is fraudulent, false, misleading, or deceptive;

    • Is defamatory, obscene, pornographic, vulgar, or offensive;

    • Promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;

    • Is violent or threatening or promotes violence or actions that are threatening to any other person;

    • Promotes illegal or harmful activities or substances;

    • Constitutes spam, or competes with our business; or

    • Contains any computer virus or other malicious code designed to attack, damage, divert, take over, disable, overburden, or otherwise impair the Service.

  • Attempt to scrape, extract or collect any personal or private information from the Service or from other users of the Service, for any commercial purpose (whether manually or through electronic means).

  • Resell the Service, in whole or in part, or any content residing or displayed within or through the Service, or any food or other products purchased through the Service.

  • Intercept, monitor, damage, or modify any communication not intended for you.

  • Impersonate or misrepresent your affiliation with any person or entity.

  • Alter the way that an aspect of the App or the Site is displayed or delivered to other users.

  • Attempt to probe, scan, or test the vulnerability of the Service or breach any security or authentication measures.

  • Interfere with, or attempt to interfere with, the access of any user, including, without limitation, by sending a virus or overloading, flooding, spamming, or mail-bombing the Service.

  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure intended to protect, limit access to or control the Service.

  • Access the Service if we have requested that you refrain from such access.

  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service.

  • Assist or permit anybody to violate these Terms.

 

We reserve the right to restrict or block access to the Service for any reason or no reason.

 

You acknowledge that we have no obligation to monitor your access to or use of the Service for violations of the Terms, or to review any content you submit to us. However, we have the right to do so for the purpose of operating and improving the Service (including, without limitation, for fraud prevention, risk assessment, investigation, and customer support purposes), to ensure your compliance with the Terms, and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency, or other governmental body.

 

8.       Intellectual Property Ownership; License to Use Service

 

Wonder (and its licensors, where applicable) shall own all right, title and interest, including all intellectual property rights, in and to the Service, including all photographs, copy and other content displayed through the Service (other than your User Content). These Terms do not convey to you any rights of ownership in or to the App, the Site or the Service, or any other intellectual property rights owned by Wonder. The Wonder name, any Wonder logos, and the names of the menu items and any restaurants or personal names displayed on or through the Service are trademarks of Wonder 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 on the Site or App. These Terms permit you access to the Service for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works from, publicly display, publicly perform, republish, download, store or transmit any of the material on our Site or the App.

 

Subject to these Terms, Wonder grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to access and use the Service solely for your personal non-commercial purposes. Any future release, update or other addition to the Service shall be subject to these Terms.

All rights not expressly granted are reserved by Wonder and its licensors.

 

9.       User Content and Feedback; Digital Millennium Copyright Act Notice

 

(a)    User Content. Wonder may provide you with the ability to post comments, ratings and reviews through the Service (collectively, “User Content”). You represent and warrant that you own or otherwise have the right to provide all User Content that you submit, post and/or otherwise transmit through the Service. You hereby grant Wonder 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, distribute and/or otherwise use the User Content in connection with Wonder’s business. You also grant Wonder a license to use your username and/or other profile information to attribute User Content to you, without notification to or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with their participation in the Service. Wonder reserves the right in its sole discretion to remove any User Content from the Service, 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 these Terms or that we consider to be objectionable. You agree that Wonder may, but is not obligated to, monitor and/or delete your User Content for any reason in Wonder’s sole discretion. Wonder is not responsible for, and does not endorse, content in any posting made by other users through the Service. You are solely responsible for your reliance on anything posted by another user. Under no circumstances will Wonder be held liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you or any third party in connection with the content posted by a third party.

 

(b)    Feedback. By sending us any feedback, comments, questions, or suggestions concerning Wonder or the Service (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, and (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback. This Feedback section shall survive any termination of your Account or any aspect of the Service.      

 

(c)     Digital Millennium Copyright Act Notice. Wonder is committed to complying with U.S. copyright and related laws, and all users must comply with these laws. Accordingly, our users (including you) may not disseminate any material or content using the Service in any manner that constitutes an infringement of third-party intellectual property rights, including rights granted under U.S. copyright law. Owners of copyrighted works who believe that their rights under U.S. copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. It is our policy in accordance with the DMCA and other applicable laws to terminate the rights of any user to access the Service when we determine that they are repeat infringers.

 

If you believe that your work has been used in a way that constitutes copyright infringement, please provide the following information to the Wonder Copyright Agent:

 

·       a description of the copyrighted work that you claim has been infringed;

·       a description of where the material that you claim is infringing is located on the Site;

·       your address, telephone number and email address;

·       a 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;

·       an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest, as applicable; and

·       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 such owner’s behalf.

 

The Wonder Copyright Agent can be reached as follows:

 

Mail:     Wonder Group, Inc.

              4 World Trade Center

              150 Greenwich Street, 57th Floor

              New York, New York 10007

Email:   [email protected]

 

If we remove or disable access in response to such a notice, or plan to, we may forward your notice and related communications to the user responsible for the content so that they can object to your request.

 

10.    Food Safety, Nutritional Information & Allergens.

 

(a) Food Safety. For optimal taste and quality, we recommend consuming your delivered meal immediately. Proper care of perishable food and leftovers is essential to ensure your food continues to be safe to eat. If you are not consuming the delivered meal immediately, divide it into smaller portions, cover, and refrigerate at 40ºF or below as soon as possible. Perishable foods left at room temperature for 2 hours (or above 90ºF for 1 hour) must be discarded. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups.

 

(b) Nutritional Information & Allergens. Nutrition information displayed on the Service for the food is calculated based on standardized recipes, and variations may occur based on differences in product assembly, customization, and variations in information provided by product manufacturers and suppliers who may modify their products from time to time. In turn while we always strive to provide accurate nutrition and allergen information, we cannot guarantee that such information displayed on the Service at the time you place your order is accurate or complete. All food is prepared, stored, and packaged in facilities that process the 9 major U.S. allergens – milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, soy and sesame.  Fried items are prepared in shared frying oil.  While we take precautions to limit cross-contact, we cannot guarantee that cross-contact has not occurred between ingredients. Vegetarian and vegan ingredients may be handled on shared equipment or in shared frying oil with meat ingredients and may not be suitable for all vegetarian or vegan diets.

 

11.   Payment

 

(a)    Payment Authorization. You authorize Wonder to charge all sums for orders that you make to the payment method designated in your account. If there is a problem charging your selected payment method, we may charge any other valid payment method associated with your account. Wonder reserves the right to request additional information from you if we have reason to believe, in our sole discretion, that a payment method may be fraudulent.

 

(b)    Prices. Wonder reserves the right to change its prices and/or fees at any time, at its discretion.

 

(c)     Refunds and Credits. Charges paid by you for completed and delivered orders are final and non-refundable. If you are not satisfied with your order, please contact us at [email protected] within twenty-four (24) hours of delivery. Wonder has no obligation to provide refunds or credits, but may grant them in our discretion. Credits are nontransferable, not exchangeable for cash, and subject to expiration.

 

12.   Promotional Offers. Wonder may make promotional offers (“Offers”) in its discretion, which are valid as indicated and subject to these Terms and any other terms provided with such Offer.  You understand that 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 its terms; (iii) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date provided. Wonder may change, cancel, withhold, deduct or modify any Offer at any time in its sole discretion.  Offers cannot be applied toward gift cards, alcohol, Wonder+ membership fees, or taxes.  Customer must meet any qualifications stated in the Offer to receive its benefit, as well as have a valid Wonder account with a valid form of accepted payment on file.  Offers can only be redeemed for orders on the Site or App unless expressly stated otherwise.  For Offers available to new customers or members, as applicable, a customer/member will be disqualified if Wonder has a record of such customer’s name, contact information or credit card being previously used for a Wonder order or linked to an active or inactive Wonder account, or if otherwise suspected of fraudulent activity.  All Offers are subject to availability.  Offers are not transferable and may not be sold, modified, traded or otherwise transferred.  Offers cannot be combined unless otherwise stated in the Offer and cannot be applied retroactively.   Void where prohibited or restricted by law.  The customer redeeming the Offer is responsible for any applicable sales or other taxes related to the use of an Offer.

 

13.   Gift Cards. 

 

(a)    Issuance, Use and Redemption.  Except as otherwise provided, gift cards are redeemable toward eligible orders placed on the Site or the App.  Wonder, in its sole discretion, shall determine what constitutes an eligible order.  Gift cards cannot be used to purchase other gift cards.  Gift cards will not expire and no fees apply to gift cards.  Wonder reserves the right to cancel, suspend or deactivate any gift card in the event of actual or suspected fraud, illegal activity or a breach of these Terms.  In order to redeem a gift card, you must have or create a Wonder account and provide a valid credit card (or other acceptable payment method) to complete the purchase.  If the gift card does not have sufficient value to cover the entire purchase, the remaining balance must be paid at the time of redemption using another acceptable payment method.  Gift cards are not credit or debit cards.  Except to the extent required by applicable law, unused gift card balances will remain on such gift card.  You may not purchase or obtain multiple gift cards with a value of more than $9,999 in any one day.  Additional restrictions on the use of gift cards may apply with other offers.  Any gift card use not permitted by these Terms is strictly prohibited.

 

(b)    Cancellations, Returns and Risk of Loss.  Gift cards are not returnable or redeemable for cash except when required by applicable law.  Gift cards are not transferable and may not be resold.  Gift cards cannot be reloaded or increased in value. Ownership and risk of loss of a gift card passes to you once transmitted by Wonder.  Wonder is not responsible for gift cards that are lost, stolen, or destroyed and such gift cards will not be replaced or replenished.  Only gift cards obtained directly from Wonder are valid.  Gift cards are subject to verification by Wonder and any gift card obtained through fraudulent or illegal means may be subject to invalidation without refund in Wonder’s discretion.

 

(c)     Limitation of Liability.  Gift cards are issued by Wonder Group, Inc., who is the sole obligor to you unless such obligation is assigned by Wonder Group, Inc.  Wonder bears no responsibility or liability for any gift card and you irrevocably release Wonder from any liability or claim relating to a gift card.  TO THE FULLEST EXTENT PERMITTED BY LAW, WONDER SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND IN ANY WAY CONNECTED WITH GIFT CARDS OR THEIR USE. WONDER 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 IN ANY WAY CONNECTED WITH GIFT CARDS, EVEN IF WONDER WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WONDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  YOUR SOLE REMEDY, AND WONDER’S SOLE LIABILITY, WILL BE THE REPLACEMENT OF THAT GIFT CARD.

 

14.   Wonder+ Membership

 

(a) General. Wonder+ is an automatically renewing subscription requiring recurring payments until canceled. A monthly or annual Wonder+ subscription grants access to certain benefits on eligible orders placed through the Site or App as indicated, which reserves the right to modify, change or cancel at any time. If you are a United States customer (excluding one whose primary residence is in Puerto Rico), you acknowledge that you are purchasing a Wonder+ membership subscription exclusively from Wonder Group, Inc. Wonder orders are subject to availability.  Fees and taxes may apply. Wonder reserves the right to add and modify fees that may apply to your Wonder+ membership subscription.  Your Wonder+ membership subscription cannot be transferred or assigned. Wonder reserves the right to accept, refuse, suspend, or cancel your Wonder+ membership subscription at any time in its sole discretion.  If Wonder changes the monthly or annual fee charged for a Wonder+ membership subscription, Wonder will notify you and provide you with the opportunity to cancel your subscription before your Wonder+ membership subscription is renewed for another term and you may cancel within the specified period. Your continued use of the Services after a fee or feature change becomes effective will constitute your acceptance of the change, and any updated terms and conditions will apply for the remaining subscription term and all renewals going forward.

 

(b) Payment. Wonder+ is available for a monthly or yearly fee that is payable at the start of the relevant period. By signing up for Wonder+, you agree that: (i) you will be charged your first subscription fee and any applicable taxes or fees on the date of purchase or, if your Wonder+ membership subscription includes a free trial, on the day after the free trial period ends; (ii) you authorize Wonder and its service providers to store your payment method and other information necessary for the purpose of executing future Wonder+ auto-renewal transactions; (iii) UNLESS YOU CANCEL, BY DEFAULT (AND WITH PRIOR NOTICE ONLY TO THE EXTENT REQUIRED BY APPLICABLE LAW), YOUR WONDER+ SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD; and (iv) AT THE TIME OF RENEWAL, WONDER WILL AUTOMATICALLY CHARGE THE THEN-CURRENT WONDER+ FEE AND ANY APPLICABLE TAXES AND FEES TO AN ELIGIBLE PAYMENT METHOD THAT WE HAVE ON FILE. If your payment details change, your card provider may provide Wonder with updated payment details which Wonder may use in order to prevent interruption to your Wonder+ membership subscription. This includes Wonder’s right to charge any payment method on file if the initial form of preferred payment fails. Customer is responsible for keeping billing information up to date. If any amount or fee is not paid in a timely manner or a transaction cannot be processed, Wonder reserves the right to suspend, disable, cancel, or terminate your access to your Wonder+ membership subscription. You are responsible for paying any and all past due amounts.

 

(c) Trial or Promotional Subscriptions. Wonder may, in its discretion from time to time, offer trial or other promotional subscriptions to Wonder+. Such trial or promotional subscriptions are available only for customers who have not previously subscribed to Wonder+ (whether on a free or paid plan) and are subject to these Terms except as otherwise stated in the promotional offer. If you do not cancel the free trial or promotional subscription within the trial or promotional pricing period, you agree to purchase a paid Wonder+ membership subscription at the then-current rate. When your free trial or promotional pricing period has expired, your subscription will automatically convert into a paid, automatically renewing Wonder+ subscription, and Wonder will charge the applicable fee (plus applicable taxes and fees) unless you cancel. If you cancel before the trial offer has expired, Wonder will not charge you for Wonder+. If you purchase a Wonder+ membership subscription with a promotional code, each time your subscription renews, you will be charged the full billing amount. Only one trial or promotional membership subscription is available per household. If your Wonder+ membership subscription is ever terminated for any reason, you will not be eligible for a free trial or promotional offer on any subsequent Wonder+ membership subscription.

 

(d) Cancellations. When a Wonder+ membership subscription is cancelled, only future charges associated with that Wonder+ membership subscription are cancelled. While you may initiate your cancellation at any time, the cancellation will become effective at the end of the 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.  UNLESS PROHIBITED BY APPLICABLE LAW, YOUR SUBSCRIPTION FEE IS NONREFUNDABLE.   If you cancel your Wonder+ membership subscription, you will not receive a refund for amounts previously paid, but you can continue to enjoy any Wonder+ membership subscription benefits through the end of your then-current subscription period. Wonder may issue refunds, credits or discounts in its sole discretion and, if it does, is under no obligation to issue the same or similar refund in the future. 

 

15.   Purchase of Alcoholic Beverages

 

You may have the option to purchase alcoholic beverages through the Service. By placing an order that includes alcoholic beverages, you represent and warrant that you are at least 21 years of age and that an individual 21 years of age or older will be present to accept the delivery of such alcoholic beverages.

 

Upon delivery of any order containing alcoholic beverages, the individual accepting the delivery must present a valid government-issued photo identification acceptable to the Wonder delivery person to confirm that the individual is at least 21 years of age. Wonder and our delivery representatives reserve the right to refuse delivery of alcoholic beverages if the person accepting the order does not present valid identification. We also reserve the right to refuse delivery of or cancel your alcoholic beverage order, or to suspend or terminate your Account, if we believe, in our sole discretion, that furnishing alcohol to you or the person accepting the delivery on your behalf is illegal, unsafe, or inappropriate.

 

16.   Indemnification

 

You agree to indemnify and hold harmless Wonder and the members of its corporate family (i.e., all parents, subsidiaries and affiliates), as well as Wonder investors and partners, and our and their respective agents, partners, employees and contractors, at your own expense and immediately after receiving a written notice from us, from and against any damages, loss, costs, settlements, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any third-party complaint, claim, demand or liability arising out of or related to your breach of these Terms, or your violation of any law or third-party rights. The members of Wonder’s corporate family (which means all parents, subsidiaries and affiliates of Wonder), as well as Wonder investors and partners, and our and their respective agents, partners, employees and contractors, are third-party beneficiaries of this paragraph. 

 

17.   Disclaimer of Representations and Warranties

 

THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THIS AGREEMENT.

 

YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (1) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) OF INFORMATIONAL CONTENT OR ACCURACY, (3) OF NON-INFRINGEMENT, (4) OF PERFORMANCE, (5) OF TITLE, (6) THAT THE SERVICE WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (7) THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, (8) THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM, OR (9) THAT WE WILL ENFORCE THE TERMS AGAINST OTHERS TO YOUR SATISFACTION. WONDER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF RESTAURANT PARTNERS. WONDER DOES NOT CONTROL, MANAGE OR DIRECT RESTAURANT PARTNERS. ANY EFFORTS BY WONDER TO MODIFY THE SERVICE SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS OR ANY OTHER PROVISION OF THESE TERMS. Some jurisdictions limit or do not allow the disclaimer of implied warranties, and as a result some or all of this section may not apply to you. In cases where such laws apply, the warranties will be disclaimed only to fullest extent permitted by law.

 

IN THE EVENT OF AN ERROR ON OUR APP OR SITE, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND MATERIALS YOU RECEIVE MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON OUR APP OR SITE DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE VARIABILITY AND AVAILABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING APPLIANCES AND EQUIPMENT. OUT APP AND SITE MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN ALL LOCATIONS. A REFERENCE TO A PARTICULAR ITEM ON OUR APP OR SITE DOES NOT IMPLY OR GUARANTEE THAT SUCH ITEM IS OR WILL BE AVAILABLE IN YOUR LOCATION AT THE TIME OF YOUR ORDER.

 

18.   Limitation of Liability 

 

IN NO EVENT SHALL WONDER OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, INVESTORS, AGENTS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, AFFILIATES, PARENTS, SUBSIDIARIES, LICENSORS, SUBLICENSEES, SUCCESSORS OR ASSIGNS (COLLECTIVELY, WITH WONDER, THE “WONDER ENTITIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR WITH THE DELAY OR INABILITY TO USE SAME, OR ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY RESTAURANT PARTNER, OR FOR ANY BREACH OF SECURITY, OR FOR ANY CONTENT, MENU ITEMS, OR SERVICE OBTAINED THROUGH OR VIEWED ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF THE WONDER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM ANY WONDER ENTITY’S NEGLIGENCE OR GROSS NEGLIGENCE. IN NO EVENT SHALL THE WONDER ENTITIES’ AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICE EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) AND THE COST OF THE MEAL WHICH IS THE SUBJECT OF THE APPLICABLE CLAIM. ADDITIONAL DISCLAIMERS BY WONDER MAY APPEAR WITHIN THE SERVICE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SERVICE OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. Some jurisdictions restrict or do not allow the limitation of liability in contracts, and as a result the contents of this section may not apply to you. In cases where such laws apply, liability of the Wonder Entities shall be limited to the fullest extent permitted by law and shall not have the effect of waiving rights that may not be waived as a matter of law.

 

19.   Arbitration and Class Action Waiver

 

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

 

You and Wonder agree that these Terms may affect interstate commerce and that to the broadest extent permissible under law the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

 

This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising, and any content available on or through any App or our Site); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

 

By agreeing to these Terms, you agree to resolve any and all disputes with Wonder as follows:

 

Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Wonder at [email protected]. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Wonder, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

 

Binding Arbitration: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ or Privacy Policy’s formation, performance, and breach), the parties’ relationship with each other, and/or your use of our App or our Site shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms or the Privacy Policy, including but not limited to any claim that all or any part of these Terms or Privacy Policy is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com ); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 Eighth Ave. NY Times Building 34th Floor New York, NY 10018 USA; and (c) send one copy of the Demand for Arbitration to Wonder at 399 Jefferson Road, Parsippany, New Jersey 07054, Attention: Legal Department.

 

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Wonder will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Wonder will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

 

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

 

You and Wonder agree that any arbitration will take place in the county of your billing address. You and Wonder further agree to submit to the personal jurisdiction of any federal or state court in New York County, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

 

Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WONDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above (but not the remainder of these Terms of Service) shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

 

Exception for Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

 

30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you used to create your Account) written notice of your decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your agreement to these Terms; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Wonder also will not be bound by them.

 

Changes to This Section: Wonder will provide thirty (30) days’ notice of any changes to this section by posting on the Service, sending you a message, or otherwise notifying you when you are logged into your Account. Amendments will become effective thirty (30) days after they are posted on the Service or sent to you.

 

Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Service.

 

Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Service.

 

20.         Governing Law

 

The Terms and the relationship between you and Wonder shall be governed in all respects by the laws of the State of New York, without regard to its conflict of law provisions. Any claim or dispute either of us may have against the other that is not subject to arbitration must be resolved by a court located in New York County, New York. We both agree to submit to the personal jurisdiction of the federal and state courts located within New York County, New York for the purpose of litigating all such claims or disputes that are not subject to arbitration.

 

21.         Effect of Terms.

 

These Terms constitute the entire and exclusive understanding and agreement between us and you regarding the Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between us and you regarding such topic. If we fail to enforce any part of these Terms, it will not be considered a waiver.

 

22.         Questions

Should you have any questions regarding these Terms you may contact us at [email protected].