CALIFORNIA FISH GRILL TERMS OF SERVICE

Last Updated: 7/28/2017

These Terms of Service (“Terms”) apply to your access to and use of the website (our “Site”) provided by California Fish Grill, LLC (“California Fish Grill,” “we” or “us”). The Terms also apply to each order (“Order”) you place for food, drinks, or other products made available through the Site (the “Products”). By accessing or using the Site, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 12, do not access or use our Site.

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you.

If you have any questions about these Terms or our Site, please contact us at hello@cafishgrill.com.

2 User Accounts and Account Security

You must be at least 18 years of age (or the age of legal majority in the state where you reside) to access and use the Site.  By accessing and using the Site, you represent that you have the right, authority and capacity to enter into this agreement with us.  If you are accessing or using the Site on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

3 Terms of Sale

You may use the Site to order Products for pick-up from one of our retail locations. To place an Order, you must have an online account with us.

Availability and Pricing. All Orders are subject to availability, and we reserve the right to impose limitations on any Order, or to reject all or any part of an Order, even after it has been placed. All prices displayed through the Site are subject to change without notice, but changes will not affect any Order that you have already placed.

Taxes. You are responsible for any sales, use, duty, or other governmental taxes or fees (“Taxes”) due with respect to your Order. We will collect applicable Taxes if we determine we have a duty to collect Taxes. We will present an estimate of Taxes to be collected at checkout. The actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.

Payment and Billing. By providing a credit card or other payment method accepted by us, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your Order (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your account, you can do so at any time by logging into your account and editing your payment information. If any portion of your Order is unavailable, we will only charge the prices, Taxes and other applicable fees associated with the portion of your Order that is available.

Refunds. Your satisfaction is our number one priority. If you are unsatisfied with our Products for any reason, please contact us within 48 hours of your Order at hello@cafishgrill.com and we will refund you the purchase price for that Order.

4 Acceptable Use

You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Site. You will not:

5 Limited License; Copyright and Trademark

Our Site and the text, graphics, images, photographs, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “California Fish Grill Content”) are owned by or licensed to California Fish Grill and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, California Fish Grill and our licensors reserve all rights in and to our Site and the California Fish Grill Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Site and California Fish Grill Content for your own personal use; however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Site or California Fish Grill Content; (b) copy, reproduce, distribute, publicly perform or publicly display California Fish Grill Content, except as expressly permitted by us or our licensors; (c) modify the California Fish Grill Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Site or California Fish Grill Content; (d) use any data mining, robots or similar data gathering or extraction methods; or (e) use our Site or California Fish Grill Content other than for their intended purposes. Any use of our Site or California Fish Grill Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

6 Third-Party Content

We may display content, advertisements and promotions from third parties on the Site (collectively, "Third-Party Content"). We do not control, endorse or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third-parties providing Third-Party Content are solely between you and such third-parties, and that California Fish Grill is not responsible or liable in any manner for such interactions or Third-Party Content.

7 Feedback

Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about California Fish Grill or our Products or Site (collectively, “Feedback”), is non-confidential and will become the sole property of California Fish Grill. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

8 Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless California Fish Grill and our officers, directors, agents, partners and employees (individually and collectively, the “California Fish Grill Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Site; (b) your Feedback; (c) your violation of these Terms; or (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights). You agree to promptly notify California Fish Grill Parties of any third-party Claims, cooperate with California Fish Grill Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the California Fish Grill Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and California Fish Grill or the other California Fish Grill Parties.

9 Disclaimers

We do not control, endorse or take responsibility for any Third-Party Content available on or linked to by our Site.

Your use of our Site is at your sole risk. Our Site is provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, California Fish Grill does not represent or warrant that our Site is accurate, complete, reliable, current or error-free. While California Fish Grill attempts to make your access to and use of our Site safe, we cannot and do not represent or warrant that our Site or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Site.

California Fish Grill does not guarantee the Products will meet your expectations. You are also solely responsible for knowing about any food allergies you may have and verifying the Products and their contents before using or consuming such Products. Further, you understand, acknowledge and agree that we store, cook and sell Products containing all eight (8) major U.S. allergens (milk, wheat, egg, soy, fish, shellfish, peanuts and treenuts) and cannot guarantee that cross-contamination will not occur between Products. We attempt to display the Products and information you view on our website, as accurately as possible. However, we do not guarantee the accuracy of such materials and information. In the event of an error on our website, in an Order confirmation, in processing an Order or otherwise, we reserve the right to correct such error and revise your Order accordingly (including charging the correct price) or to cancel your Order and issue you a refund. You further agree that the Products and other materials you receive in your Order may vary from the Products and materials displayed on the Site. The Site may contain information about Products that are not available in every location. A reference to a Product on the Site does not imply or guarantee that it is or will be available in your location or at the time of your Order.

10 Limitation of Liability

California Fish Grill and the other California Fish Grill Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if California Fish Grill or the other California Fish Grill Parties have been advised of the possibility of such damages.

The total liability of California Fish Grill and the other California Fish Grill Parties, for any claim arising out of or relating to these Terms or our Site, regardless of the form of the action, is limited to the greater of the amount paid, if any, by you for any Order giving rise to the claim or $100.

The limitations set forth in this section will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of California Fish Grill or the other California Fish Grill Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

11 Release

To the fullest extent permitted by applicable law, you release California Fish Grill and the other California Fish Grill Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

12 Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with California Fish Grill and limits the manner in which you can seek relief from us.

Except for small claims disputes in which you or California Fish Grill seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or California Fish Grill seeks injunction or other equitable relief for the alleged unlawful use of intellectual property, you and California Fish Grill waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Site resolved in court. Instead, all disputes arising out of or relating to these Terms or our Site will be resolved through confidential binding arbitration held in Orange County, California in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Site ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

You and California Fish Grill agree that any dispute arising out of or related to these Terms or our Site is personal to you and California Fish Grill and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

You and California Fish Grill agree that these Terms affect interstate commerce and that the enforceability of this Section 12 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law.  As limited by the FAA, these Terms and the JAMS 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; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and California Fish Grill agree that for any arbitration you initiate, you will pay the filing fee and California Fish Grill will pay the remaining JAMS fees and costs. For any arbitration initiated by California Fish Grill, California Fish Grill will pay all JAMS fees and costs. You and California Fish Grill agree that the state or federal courts of the State of California and the United States sitting in Orange County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or our Site must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and California Fish Grill will not have the right to assert the claim.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 12 by sending a letter to California Fish Grill, 17310 Red Hill Avenue, Suite 330, Irvine, CA 92614 attn Chief Financial Officer. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 13.

13 Governing Law and Venue

These Terms and your access to and use of our Site will be governed by and construed and enforced in accordance with the laws of California, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Orange County, California.

14 Changes to these Terms

We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Site and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Site. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Site after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Site.

15 Termination

We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Site. We are not responsible for any loss or harm related to your inability to access or use our Site.

16 Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

17 Miscellaneous

These Terms constitute the entire agreement between you and California Fish Grill relating to your access to and use of our Site. The failure of California Fish Grill to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.