Virtual Fork (Virtual Fork Inc., a Delaware Corporation), also referred to as "we", "us" and "our" throughout this document, provides an online booking and management platform where reservations can be made for subscribing kitchen spaces (“Platform”). A subscribing kitchen space is also referred to as “host”, "kitchen" or “space” throughout this document. All bookings are made through a kitchen’s unique subdomain (“kitchen subdomain”). By making a booking the kitchen guest user, a “guest”, enters a direct contractual relationship with the corresponding kitchen. A kitchen guest is also referred to as "you"and "your" throughout this document.
The information that is provided on the kitchen subdomain is managed exclusively by the kitchen and as such the kitchen is fully responsible for updating all rates, availability and other information which is displayed on its pages.
We act as an intermediary between you and the kitchen by facilitating the communication of booking-transaction details. In specific situations, we provide the ability for a kitchen to interact with its payment gateway through Virtual Fork. The interactions facilitated are:
Although we will use reasonable skill and care in performing our services, we cannot guarantee that all information is accurate, complete or correct, nor shall be held responsible for any errors (including manifest and typographical errors), any interruptions (whether due to any (temporary and/or partial) breakdown, repair, upgrade or maintenance of our website or otherwise), inaccurate, misleading or untrue information or non-delivery of information.
A kitchen may use a payment provider in order to take payments for bookings. A kitchen that is integrated with a payment provider will use Virtual Fork’s credit system to charge for bookings.
Importantly, in all cases where credit-card information is gathered in Virtual Fork, it is only forwarded directly to the secure credit-card store of the kitchen's payment gateway. After your credit card information is in the kitchen's payment gateway, the kitchen has the ability to issue transactions on it. Virtual Fork thus cannot control how the kitchen interacts with your credit card once it is in its gateway. As such, by choosing to provide your credit card details to the kitchen through Virtual Fork, you are agreeing to empower the kitchen to make charges to your credit card as they deem appropriate.
A number of industry-standard mechanisms are in place to dissuade kitchens from charging your credit card in a fraudulent manner. These mechanisms include:
Considering that the kitchen holds the final control over the credit card details which are entered in Virtual Fork, you are required to contact the kitchen directly if you are unsure about any aspect of their payment process. In general, Virtual Fork recommends that you do not provide credit card details to kitchens unknown to you, or kitchens for which the operational and business integrity is uncertain.
If a kitchen administrator elects to use the Virtual Fork interface to charge your credit card, you will be sent a notification of this charge. Otherwise, depending on the setup of the kitchen's payment gateway, you may or may not receive an email notification of charges made to your credit card.
If credit card details are entered into Virtual Fork in the context of a kitchen subdomain, we will verify that the provided credit card is associated with a valid, open account and can be successfully charged. We do this via payment gateway verification facilities (all communication with the payment gateway is done through an industry-standard SSL connection). This does not result in the deduction or reservation of any funds, however in some cases cardholders may see a temporary authorization for a small amount on their account after their card has been verified. The authorization will fall off the cardholder's account within a few days and will never settle.
Sensitive credit card information (e.g. raw credit card numbers and verification codes) never makes contact with the servers on which Virtual Fork is hosted. View the Terms of Service of our payment processor, Stripe, to learn more about how your sensitive credit card information is handled.
A kitchen is able to configure their account such that your booking details may be visible to persons other than you and the administrators of the kitchen. A kitchen may also change such settings in their account at any time, which may affect the visibility of your existing bookings.
By making a booking at any time, you hence agree that basic details about your booking may be shown other persons interacting with the kitchen's account. These basic details are 1) your first and last name, 2) your organization (if any), 3) the spaces ofthe booking, and 4) the booking title (if any).
We are not liable for any consequences relating to the disclosure of booking details in this way.If you are in doubt about how your booking details will be seen by other users, you must first contact the kitchen and seek clarification before making any bookings.
By completing a booking, you agree to receive a notification either though the Platform, through email, or through text 1) in the event a booking is confirmed, 2) in the event you cancel or change a booking 3) in the event the booking is modified by the kitchen and 4) in the event that the kitchen charges, facilitated by Virtual Fork, your credit card.
Other than communications initiated from us or the kitchen regarding your booking,notification of addition to other subscribing kitchens and changes made to your personal user profile (e.g. password-reset emails), we shall not send any unsolicited notices, emails or correspondence, unless you specifically agree otherwise.
The kitchen agrees that they will use your information with discretion, not engage in spamming via email or phone and not pass on information to any third parties unless you specifically agree otherwise.
Virtual Fork uses high ethical standards and respects your privacy, and we will duly and diligently safeguard and protect the privacy and confidentiality of your personal details, including your credit card details. For further information, please view our Privacy Policy.
Unless stated otherwise, the software required for our services and used by our website and the intellectual property rights (including the copyrights) of the contents and information of and material on our website are owned by Virtual Fork.
These Guest Terms of Service are subject to and is governed by and construed in accordance with the laws of the State of Texas, USA, without regard to its conflicts of laws provisions.
In order to resolve a complaint regarding access to or use of the Platform or any User Account you create with us or to receive further information from us about the Platform, please contact us at:
Virtual Fork, Inc.
PO Box 254, 823 Congress Ave
Ste. 150
Austin, TX, 78701
U.S.A.
Email: info@virtualfork.io
Welcome to Virtual Fork. Please read these Terms of Service carefully. These Terms of Service form a legally binding agreement between you and Virtual Fork, Inc. (“Virtual Fork,” “we,” “us,” and “our”) regarding your access to and use of Virtual Fork’s Platform(the “Platform”). The Platform, among other things, is a software as a service tool for managing shared kitchens, where a shared kitchen owner or operator (each, a “Host”) can arrange scheduling, tracking, onboarding,and billing of food concepts and businesses (each, a “Guest”) as renters in their shared kitchen space. For the avoidance of doubt, if you order services through a Master Service Agreement with us, any such services are governed by the terms of the Master Service Agreement and not these online terms.
Wehost, operate, and maintain an online Platform that provides tools for scheduling, booking, tracking, invoicing, payment processing, and communication between kitchens (“Kitchens”, “Spaces”, or “Kitchen Spaces”)and their Guests.
The Platform may comprise, among other things, one or more websites or webpages(collectively, the “Site”); one or more elements of software that enables you to access and use the Platform (collectively, the “Software”); and related information,documentation, and materials that we provide or otherwise make available to you from time to time as part of the Platform (collectively, the “Documentation”).Unless the context indicates otherwise, the term “Platform,” as used in these Terms of Service, comprises the Site, Software, Documentation, and any of our related products, services, systems, technology, features, or functions(including any enhanced features or functions or premium products or services)that we offer from time-to-time part of the Platform.
The Platform provides you and other Guests and Hosts the tools to connect, communicate, and transact with, and advertise to,each other. It helps Guests connect with Hosts and Hosts connect with Guests. We do not endorse any specific Hosts, Kitchens, Spaces, restaurants,delivery platforms, Guests, or food concepts, or food businesses. Users of thePlatform (each, a “User”) are independent, including Hosts and Guests.Neither Hosts, Guests, nor other Users are employees, agents, or representatives of Virtual Fork.
By registering for, subscribing to, enrolling with, or otherwise accessing or using the Platform, you accept and agree to be bound by these Terms of Service (this “Agreement”), including the provisions below that (a) allow us, in certain circumstances, to cancel,suspend, or otherwise place limits on your access to and use of the Platform and (b) require you to resolve disputes with us by mandatory binding arbitration involving a class action waiver.
This Agreement constitutes a legally binding agreement made between Virtual Fork andany Users, whether an individual or an entity (“you,” “yourself,” and “your”) that registers for, subscribes to, enrolls with, or otherwise accesses or uses the Platform. In the event that you purport to be an agent or other representative of an entity (e.g., an officer or employee) or in the event that you otherwise, in fact, act on behalf of such an entity, you hereby acknowledge and agree that references in this Agreement to “Guest,” “Host,” “User,” “you,” “yourself,” and “your” include such entity.
If you are an entity, you may have one or more affiliates, such as a parent or subsidiary(each, a “User Affiliate”). A User Affiliate that wishes to access and use the features and functions of the Platform must enter into this Agreement separately with Virtual Fork by separately acquiring access to and use of thePlatform. This creates a separate agreement between the User Affiliate and Virtual Fork. Neither you nor any User Affiliate has any rights under each other’s agreement with us, and breach or termination of any such agreement is not breach or termination of any other.
You agree that by registering for, subscribing to, enrolling with, or otherwise accessing or using the Platform, you have read, understood, and agree to be bound by this Agreement on behalf of yourself and any entity that you represent. If you do not agree to all of the terms of this Agreement, do not access or use the Platform. Except for certain kinds of disputes specifically described in Section 16 below, you agree that disputes arising under this Agreement will be resolved by mandatory, binding, individual arbitration, and by accepting this Agreement, you and we are each waiving the right to a trial by jury or to participate in any class action or representative proceeding. You agree to give up your right to go to court to assert or defend your rights under this Agreement. Your rights will be determined by a neutral arbitrator and not a judge or jury. Please see Section 16 for more information.
In order to access and use the Platform, now or in the future, you must be at least 18 years of age (or the age of legal majority where you live and/or access the Platform).
You acknowledge and understand that the Platform is designed, developed, hosted, operated, supported, maintained, and otherwise offered by us in or from the United States and that the Site, Software, and Documentation are controlled and offered by us from our facilities in the United States. The Platform is not intended for distribution to or use by any person or entity outside the United States, and we make no representations that the Platform, including the Site, Software, and Documentation, are appropriate or available for use in other locations or jurisdictions. More specifically, the Platform is not intended for use in any jurisdiction where such distribution or use would be contrary to law or that would subject us to any registration requirement within such jurisdiction. Accordingly, those persons and entities that choose to access or use the Platform from locations outside the United States do so at their own volition and are solely responsible for compliance with any applicable local laws.
Further, you represent and warrant that you (and, if applicable, any entity that you represent) are not (a) located in a country that is subject to a US government embargo, or that has been designated by the US government as a “terrorist supporting” country; or (b) listed on any US government list of prohibited or restricted parties. You represent that you will comply with all US export control laws and the export control laws in your local jurisdiction.
By accessing or using the Platform, you represent and warrant that you meet all eligibility requirements. If you do not meet any such requirement, you must not access or use the Platform. We reserve the right to cancel, suspend, or otherwise limit your access to and use of the Platform, if you fail to comply with any of these eligibility requirements.
We reserve the right to modify the terms, conditions, limitations, and restrictions set forth in this Agreement, any Supplemental Terms (as defined below), and any other Applicable Terms (as defined below), at any time and in our sole discretion; provided, that, in the event that we make modifications to this Agreement, including modifying or introducing any Supplemental Terms that are, or are to be, incorporated in this Agreement by reference, we will endeavor to notify you the next time that you access the Platform and allow you to review and accept the modifications or Supplemental Terms, as the case maybe, prior to continuing.
The most current version of this Agreement will be posted at www.virtualfork.io, and we will update the “Last updated” date at the top of this Agreement.
Supplemental Terms, if any, are hereby expressly incorporated into this Agreement by this reference. “Supplemental Terms” may include such things as terms of use that apply to your registration of, access to, or use of any User Account you create with us (see Section 6 below) and/or supplemental terms and conditions governing enhanced features or functions of the Platform or premium products or services that, in each case, we offer from time to time as an element of thePlatform. Your continued access to and use of the Platform following notice of Supplemental Terms, including any modifications thereto, will constitute your acceptance of them. If you do not agree to Supplemental Terms as they are introduced, including modifications thereto as they occur, you will immediately discontinue accessing or using the Platform, including any and all of the features and functions thereof.
In addition to this Agreement and Supplemental Terms incorporated by reference into this Agreement, your access to and use of the Platform may be governed, in part, by separate policies, procedures, or guidelines that govern access to and use the Platform or specific elements thereof. Examples may include a cancellation policy; a code of conduct; rate sheets or price lists that list listing fees, booking fees, transaction fees, subscription fees, or other types of fees or surcharges charged by us from time to time; or other policies, procedures, and guidelines. As a condition to your continued access to and use of the Platform,you hereby agree to comply with any such policies, procedures, or guidelines published by us on the Sites and otherwise made accessible to you.
This Agreement, together with the Supplemental Terms that govern the purchase of, access to, or use of features, functions, products, or services that you elect to purchase, access, or use, together with the separate policies, procedures, or guidelines that govern access to and use of the Platform or specific elements thereof are referred to in this Agreement, collectively, as the “Applicable Terms.”
You acknowledge and agree that Supplemental Terms also may include express terms and conditions agreed upon and set forth in a separate, written, and signed agreement between Virtual Fork and you or an entity you represent. If there is a conflict between the terms,conditions, limitations, or restrictions set forth in a separate, written, and signed agreement between Virtual Fork and you or an entity you represent, theterms, conditions, limitations, and restrictions set forth in that agreement will supersede the conflicting terms, conditions, limitations, or restrictions set forth in this Agreement, to the extent of any such conflict, as long as that agreement is signed by an authorized signatory of Virtual Fork.
You are solely responsible for the software, hardware, network connections, and other systems needed in order for you to access and use your User Account and the Platform. You accept any and all risk arising out of your use of the Platform, including, for the avoidance of doubt, your use of the Site, Software, and Documentation.
As a User, you may be required to establish an account (an “Account”) to access portions of the functionality of the Platform. Your account and its’ activation are subject to approval by Virtual Fork. In connection with establishing an Account, you will be asked to submit certain information about yourself (“Registration Information”). You agree that all Registration Information you provide will be true and complete; and you will maintain and promptly update Your Registration Information to keep it accurate and current.
By providing Virtual Fork your email address, you consent to Virtual Fork sending you messages, details regarding changes to the Platform or the Agreement, promotions, and other notices, including notices required by law, in lieu of communication by mail.If you do not wish to receive promotional communications, you may opt out by emailing info@virtualfork.io. After creating an Account you will be required to update all User information. Virtual Fork reserves the right to suspend or terminate your Account and your access to the Platform if any information provided proves not to be accurate, current, or falls outside the intended Userscope. You are responsible for maintaining the confidentiality of your password and Account. Virtual Fork will not be liable for any loss or damage as a result of any unauthorized use of your Account. You will immediately notify Virtual Fork of any unauthorized use of your password or Account by emailing us at info@virtualfork.io.
As a Kitchen, you may upload Content for your Kitchen Space to the Platform and utilize the Platform to manage your existing customers’ booking, scheduling, and payment processing. Upon doing so, you will be asked to create a listing by entering critical information such as the address of your Kitchen Space; a general description including its amenities, your company culture, availability, occupant capacity,price per hour or monthly plans, and/or rules of use (“House Rules”);images; a unique password; and any additional information we may require. You may also choose to include eligibility requirements for Guest to Lease your Kitchen Space, such as insurance coverage.
You also understand and agree that Virtual Fork does not act as a broker, insurer, or contracting agent for either the Kitchen or the Guest. Virtual Fork reserves the right, in its sole discretion, to remove any Account that it considers to be objectionable for any reason or in violation of the Agreement.
You acknowledge and agree that you are responsible for all Content you create. Accordingly, you represent and warrant that:
You understand and agree that Virtual Fork is not a real estate broker and does not offer real estate brokerage services. Except with respect to the Kitchen’s appointment of Virtual Fork as its agent for the collection of the Lease Fee and Additional Fees, Virtual Fork is acting only as a passive conduit for the management of your kitchen space. Virtual Fork recommends that Hosts and Guests consult with a reputable provider to enter into any rent or lease agreement (“Lease Agreement”) for the purposes of renting Kitchen Space. Virtual Fork additionally recommends that the Kitchen maintain operating policies and procedures that are made available to Guest as part of the Lease Agreement. Any Lease Agreements are between the Kitchen and Guest, and not the responsibility of Virtual Fork.
Virtual Fork has no responsibility or liability for any damage caused by Kitchens, Spaces, or their Guests. Virtual Fork will not compensate any party for any reason related to any damage.
You understand and agree that Virtual Fork does not act as an insurer or an agent of any type irrespective of whether Virtual Fork provides any guarantee. Virtual Fork requires that Kitchens obtain insurance for their Kitchen Space in accordance with the recommendation of a reputable insurance provider. Virtual Fork also requires that Guests obtain insurance for their personal property and general liability insurance upon the recommendation of a reputable insurance provider. It is important that you carefully review any insurance policy that you have or obtain and be sure to understand all exclusions to such policies, and any deductibles that may be required, including, but not limited to, whether your insurance policy will cover the actions or omissions of Kitchens, or their Guests as applicable.
You understand and agree that appropriate governmental agencies, departments, or authorities (the “Tax Authority”) where your Kitchen Space is located may require Taxes to be collected from You on the amount paid for the right to use and/or occupancy of accommodations, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these taxes may be required to be collected and remitted under various rules.
You as a Kitchen or understand and agree that you are solely responsible for determining (i) your applicable Tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. Virtual Fork cannot and does not offer Tax-related advice to any Users. Each of You agrees to indemnify, defend, and hold Virtual Fork harmless from and against any and all liabilities to, or claims from a Tax Authority due in connection with this Agreement.
You agree that Virtual Fork may contact you by telephone, text messages, or SMS (including by an automatic telephone dialing system), through electronic messaging on the Platform, or via email using any of the communications methods provided by you or on your behalf in connection with your creation and maintenance of your User Account, for purposes such as User Account management and support. Virtual Fork will not send you marketing content unless you opt in to receiving such content. More specifically, you consent to receive communications related to your User Account through text messages, SMS, or other communications sent to your mobile device (“Mobile Notifications”), as covered by the Telephone Consumer Protection Act (or TCPA), the CAN-SPAM Act of 2003 (or CAN-SPAM), and other applicable state privacy and telecommunications laws. Standard mobile rates will apply for any Mobile Notifications you receive. You may stop receiving Mobile Notifications at any point by responding to such message with “STOP” or otherwise following the instructions included in a message. However, if you do so, you may miss critical messages related to your User Account. We are not responsible for and disclaim all liability for all harm, damages, or losses caused by disabling Mobile Notifications. Please contact us at info@virtualfork.io if you experience issues when attempting to stop Mobile Notifications.
The Platform allows you to communicate with other users of the Platform without disclosing personal contact information. You may use the Platform only as permitted by the terms, conditions, limitations, and restrictions set forth in Applicable Terms. You may not use the Platform to send messages that are unwanted or unrelated to a Listing or a Booking through the Platform, harass or attempt to market other products or services to Users, or solicit and/or send unwanted communications. We are not responsible for, and disclaim all liability resulting from, any losses or harm to you resulting from sharing your personal contact information with other Users on or outside the Platform or communicating or engaging with Users outside the Platform.
Users are prohibited from using the Platform to facilitate agreements outside the Platform. We reserve the right to cancel or suspend your access to and use of the Platform, if we have reason to believe you have used, or are using, the Platform to facilitate agreements outside the Platform. Virtual Fork, at its sole option and without notice or any obligation to do so, may from time to time (a) archive, delete, or otherwise remove communications among Users that contain or share personal contact information, or (b) cancel or suspend the User Accounts of Users who have shared, or are sharing, personal contact information.
Virtual Fork may use the Platform to facilitate the resolution of disputes between Users, including communications between Hosts and Guests. By doing so, we do not become a party to any agreement between the applicable Hosts and Guests, including any Booking Agreements. Any effort by us to facilitate the resolution of disputes between Users is performed solely as a courtesy to our Users in hopes of making their use of the Platform more successful.
By accessing or using the Platform, you represent and warrant that: (a) you meet the eligibility requirements for accessing and using the Platform set forth in this Agreement; (b) all information you submit to us is true, current, accurate, and complete and will be maintained as such by you; (c) you are authorized to accept this Agreement on behalf of any entity that you purport to represent as an agent or other representative (e.g., as an officer or employee) or that you otherwise, in fact, act on behalf of; (d) you have not, and will not, access or use your User Account or use the Platform or any features or functions of the Platform for any illegal or unauthorized purpose, and your access to and use of the Platform will not cause Virtual Fork to be in violation of any applicable law or regulation; (e) you and, if applicable, your personnel, have obtained all licenses, registrations, and permits reasonably necessary or advisable in order to engage in the food-related activities contemplated by this Agreement and will have maintained all such licenses, registrations, and permits during the term of this Agreement; and (f) you have not, and will not, access or use your User Account or the Platform or any feature or functions of the Platform in a manner that misappropriates the intellectual property or otherwise infringes on the intellectual property rights or other rights or privileges of any third party. If you breach these representations and warranties, in addition to any other remedies that we may have at law or equity, we will have the right to cancel, suspend, or otherwise limit your access to and use of your User Account and refuse to allow you (and, if applicable, the entity you represent) to access and use the Platform or any or all of the features and functions of the Platform, now and in the future.
While we may provide information to help you understand these representations and warranties and certain of your duties and obligations arising from your use of the Platform, including requirements associated with certain licenses, permits, and registrations or compliance with certain laws, rules, and regulations, we are not lawyers and we are not authorized to provide, and do not provide, any legal advice. Such information, whether provided by us to you directly or on the Platform, including, for example, our support pages, is provided by us as a courtesy to you and other Users in hopes of making your access to and use of the Platform more successful. If you are unsure how to comply with any representations, warranties, laws, rules, or regulations or any requirements associated with licenses, registrations, or permits, you should seek the advice and counsel of a lawyer.
Neither party will use or disclose to third parties the other’s Confidential Information (as defined below) unless permitted by this section. The party disclosing Confidential Information is the “discloser” and the party receiving confidential information is the “recipient.” In addition, “advisors” means each party’s attorneys and accountants, and any subcontractor or advisor subject to a duty of confidentiality with respect to such information that is substantially equivalent to that set forth in these Terms of Service. “Confidential Information” is nonpublic information relating to the business, affairs or technology of the discloser or its Affiliates, including know-how and trade secrets, in any form, that are designated as “confidential” or that a reasonable person knows or reasonably should understand to be confidential, as well as these Terms of Service. Confidential Information is provided to the recipient “as is” without any warranties of any kind. For the avoidance of doubt, the Software will be deemed Virtual Fork’s Confidential Information.
Virtual Fork. Virtual Fork agrees to indemnify, defend, and hold harmless the Customer, its affiliates, officers, agents and employees from and against all claims, liabilities, damages, losses and expenses (including reasonable attorneys’ fees) arising from any third-party claim (“Claim”) relating to infringements or misappropriation of such third party’s patent, copyright or trade secret based on Customer’s use of the Software or Services provided to Customer under these Terms of Service. The foregoing is Virtual Fork’s exclusive obligation for infringement claims. If Virtual Fork becomes aware of a Claim alleging infringement or misappropriation, or Virtual Fork believes such a Claim will occur, Virtual Fork may, at its sole option: (a) obtain for Customer the right to continue use of the Services or Software; (b) replace or modify the Services or Software so that it is no longer infringing; or (c) if neither of the foregoing options is reasonably available, terminate the Services, in which Virtual Fork’s sole liability, in addition to the indemnification obligations outlined above, will be to refund to Customer a prorated amount of prepaid fees for the Services applicable to the remaining period in the then-current Service Term. Virtual Fork’s indemnification obligations under this Section 7.1 are expressly conditioned on: (i) Customer providing prompt notice to Virtual Fork of any applicable claim; (ii) Virtual Fork retaining the unconditional option to control the defense and settlement of any such claim; and (iii) Customer providing reasonable assistance (at the Customer’s expense) in the defense and settlement of such claim. Virtual Fork will have no indemnification obligation for Claims arising from: (w) Customer’s or any end user’s use of the Services other than as permitted under these Terms of Service; (x) any Customer Data, Customer-provided software or materials or third-party software or materials; (y) the combination of the Services with any products, services, hardware, data or business process not provided by Virtual Fork; or (z) the modification of the Services by any party other than Virtual Fork or Virtual Fork’s agents, or modification by Virtual Fork or Virtual Fork’s agents in accordance with Customer’s instructions.
Customer. Customer agrees to indemnify, defend and hold harmless Virtual Fork, its affiliates,officers, agents, employees and partners from and against all Claims relating to: (a) Customer’s use of the Services or Software (including any actions taken by a third-party using Customer’s account); and (b) Customer’s violation of applicable law and regulations, including but not limited to those relating to data privacy or security. Customer’s indemnification obligations under this section are expressly conditioned on: (i) Virtual Fork providing prompt notice to Customer of any applicable claim; (ii) Customer retaining the unconditional option to control the defense and settlement of any such claim; and (iii)Virtual Fork providing reasonable assistance (at the Customer’s expense) in the defense and settlement of such claim.
Please read this Section 16 carefully, because it requires you to waive the right to a jury trial; requires you to arbitrate certain disputes, controversies, and claims with Virtual Fork; and limits the manner in which you can seek relief from Virtual Fork. As set forth in this Section 16, no class or representative actions or arbitrations are allowed.
To expedite resolution and control the cost of any dispute, controversy, or claim arising out of or related to this Agreement, including any Supplemental Terms, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (each a “Dispute”and collectively, the “Disputes”), you and Virtual Fork (each, a “Party”and collectively, the “Parties”)agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon written notice from oneParty to the other Party.
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration before a single arbitrator. You understand that without this provision, you would have the right to sue in court and, incertain cases, have a jury trial. The Arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (collectively, the “Rules”) and in accordance with the Expedited Arbitration Procedures in the Rules, both of which are available on the JAMS website at www.jamsadr.com/adr-rules-procedures/ (or a successor site). Your arbitration fees shall be governed by the Rules and, where appropriate, limited by the Rules. If such fees expressly are determined by the arbitrator to be excessive, we will payall arbitration fees. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and anyaward may be challenged if the arbitrator fails to do so. Except where otherwise required by the Rules or applicable law, the arbitration will take place in Houston, Texas, U.S.A. Judgment on the award may be entered in any court having jurisdiction. This Section 16 shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify,vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in a court of competent jurisdiction and listed in Section 21 below.
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of fraud, theft, or piracy; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction and listed in Section 21 below, and the Parties agree to submit to the personal jurisdiction of that court.
The Parties hereby agree that this Agreement affects interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or proceeding, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s or entity’s claims, preside over any type of class or representative action or proceeding, or preside over any action or proceeding involving more than one individual or entity.
The arbitrator and the Parties will maintain the confidentiality of any proceedings, including, but not limited to, all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality unless the law provides to the contrary.
In no event shall any Dispute be commenced more than one year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction and listed in Section 21 below, and the Parties agree to submit to the personal jurisdiction of that court.
You may opt-out of the waiver of the right to have certain Disputes resolved in a class action and the waiver of the right to a jury trial described in this Section 16 by emailing us at info@virtualfork.io within 30 days after entering into this Agreement in the manner described herein. You must include your name, phone number, physical address, and email address in your opt-out notice. This is your only mechanism for opting out of the terms, conditions, limitations,restrictions, and waivers set forth in this Section 16, and failure to do so as described herein constitutes your consent hereto, including such waivers. If you choose to opt out, please note that all other provisions in this Agreement will remain intact and in full force and effect.
Other than Customer’s payment obligations hereunder, if either party is prevented from completing performance of any or all of its obligations under these Terms of Service by any cause or causes beyond its reasonable control, including acts of God, acts or omissions of any government, any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof, fire, storm, earthquake, accident, acts of the public enemy, war,rebellion, Internet brownout, third-party telecommunications network failure,subprocessor failure, malware attack, insurrection, riot, invasion, strikes or lockouts (each, a “Force Majeure Event”), then it will be excused from further performance under these Terms of Service for the duration of such Force Majeure Event upon notice to the other party stating the reason for nonperformance. If such Force Majeure Event lasts more than thirty (30) days,either party may terminate these Terms of Service immediately and Customer will be entitled to a refund for amounts paid for Services not rendered prior to termination. For purposes of clarification, the occurrence of a Force Majeure Event will not excuse Customer’s obligation to pay for the Services under these Terms of Service unless Virtual Fork is unable to provide such Services as a result of such Force Majeure Event.
Except as otherwise provided herein, no modification, amendment or waiver of any provision of these Terms of Service will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Virtual Fork is an independent contractor for all purposes, without express or implied authority to bind Customer by contract or otherwise. Neither Virtual Fork norits employees, agents or subcontractors are agents or employees of Customer. Virtual Fork will be responsible for all costs and expenses incident to performing its obligations under these Terms of Service and will provide its own supplies and equipment.
Customer may promote their use of Virtual Fork’s Services and agrees that Virtual Fork may identify Customer as a user of the Services on Virtual Fork’s website or in Virtual Fork’s business deals, press releases, marketing materials, trade shows or other promotional materials. Upon implementation of the Services by Customer: (a) Virtual Fork may issue a press release regarding Customer’s use of Virtual Fork’s Services; and (b) Customer agrees to participate in a Virtual Fork customer case study, help with customer references and provide quotes for marketing purposes. All press releases regarding Customer’s use of the Services will be pre-approved by Customer, which consent will not be unreasonably withheld.
These Terms of Service are subject to and is governed by and construed in accordance with the laws of the State of Texas, USA, without regard to its conflicts of laws provisions. Any dispute arising from or relating to the subject matter of these Terms of Service will be finally settled in Travis County, Texas, in English,in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, byone commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who will be mutually agreed upon from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party will have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms of Service, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Travis County, Texas or the Western District of Texas.
These Terms of Service constitute the entire agreement between the Customer and Virtual Fork unless the customer has ordered service from Virtual Fork and has agreed to a Master Terms of Service / Service Order. Otherwise, these Terms supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any inconsistency between the provisions of the General Terms and Conditions and the Master Terms of Service /Service Order, the Master Terms of Service / Service Order will prevail, but only as limited to the specific provision which conflicts with the General Terms and Conditions. Furthermore, if such inconsistency relates to modification of the Indemnification, Proprietary Information, Representations, Warranties, Covenants and Disclaimer, or Limitation of Liability sections herein, then such modification must specifically state that it is amending the General Terms and Conditions as so stated.
In order to resolve a complaint regarding access to or use of the Platform or any User Account you create with us or to receive further information from us about the Platform, please contact us at:
Virtual Fork, Inc.
PO Box 254, 823 Congress Ave
Ste. 150
Austin, TX, 78701
U.S.A.
Email: info@virtualfork.io
