Welcome to choco.com, the U.S. website and online and/or mobile service of Atlantic Food Waste Partners, LLC dba Choco, along with its affiliates (collectively, "Choco," "we," "our" or "us"). This page explains the terms by which you may use our online and/or mobile services, web site, and software provided on or in connection with the service (collectively, the "Service"). By accessing or using the Service, or by clicking a button or checking a box marked "I Agree" (or something similar), you signify that you have read, understood, and agree to be bound by these Terms of Service (this "Agreement") and have read and understood our Privacy Notice, whether or not you are a registered user of our Service. Choco reserves the right to modify these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service ("Users"), including Restaurant Owners and Vendors (as defined below), and this Agreement is made among you, Choco, and with respect to the Payment Service (as defined below), Choco's affiliate, Choco Payments (US) LLC ("Choco Payments") and Choco Payments's bank partner Silicon Valley Bank (the "Bank").
Please read this Agreement carefully to ensure that you understand each provision. This agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
- Our Service
Choco offers a service that enables (i) food service industry professionals (hereinafter the "Restaurant Owners") to communicate and transfer their orders to their food service vendors (hereinafter the "Vendors"), and (ii) Vendors to receive orders from such Restaurant Owners, including via a software application. Choco, through Choco Payments, also enables Restaurant Owners to use a software platform to provide payment to Vendors (the "Payment Service").
This is a contract between you and Choco. You must read and agree to these terms before using the Choco Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Choco, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Choco. In order to use the Service, you must be at least 18 years of age and able to form legally binding contracts under the relevant laws of the jurisdiction where you reside.
1.2 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Choco reserves all rights not expressly granted herein in the Service and the Choco Content (as defined below). Choco may terminate this license at any time for any reason or no reason.
1.3 User Accounts
Your account on the Service (your "User Account") gives you access to the Service and functionality that we may establish and maintain from time to time and at our sole discretion. We may maintain different types of User Accounts for different types of Users, such as Restaurant Owners and Vendors. If you open a User Account on behalf of a company, organization, or other entity, then (i) "you" includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity's behalf.
You may never use another User's User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. You must notify Choco immediately of any breach of security or unauthorized use of your User Account. Choco will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your profile or settings page. By providing Choco your email address and/or phone number you consent to our using the email address and/or phone number to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also send you other messages, such as messages regarding changes to features of the Service and special offers. If you do not want to receive such messages, you may be able to opt out or change your preferences in your profile or settings page or by otherwise contacting Choco. Opting out may prevent you from receiving messages regarding updates, improvements, or offers.
1.4 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to the Choco servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Choco grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
1.5 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination of the Service for any reason or no reason, you continue to be bound by this Agreement with regard to any aspects of the Service already performed as of the termination date.
1.6 Disputes with Other Users
You are solely responsible for your interactions with other Users, including but not limited to Restaurant Owners and Vendors. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Choco shall have no liability for your interactions with other Users, or for any User's action or inaction.
1.7 Service Location
The Service is intended for use by Users in the United States. Choco makes no representations in this Agreement that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions may be subject to separate terms of service applicable to users in those jurisdictions. Users who access the Service from a jurisdiction in which Choco does not have an applicable set of terms of service do so in violation of this Agreement and do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You must not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
1.8 Payment Service Terms
(a) Restaurant Owners and Vendor Payment Methods
The Payment Service supports several methods to receive funds for payments from Restaurant Owners to send funds to Vendors.
Restaurant Owners can transmit payments through Automated Clearinghouse ("ACH") or credit cards. Credit cards must be issued on the payment networks as mutually agreed by the parties.
Vendors can receive payments via a physical check or ACH credit.
(b) Relationship Between Choco, Choco Payments, and Vendors
Choco and Choco Payments are each an independent third-party service provider. Each of Choco and Choco Payments is in no way affiliated, formally or otherwise, with the Vendors of Restaurant Owners. Notwithstanding the foregoing, certain Vendors are also customers of Choco and Choco Payments. For the avoidance of doubt, this Agreement does not constitute an agreement between Choco or Choco Payments, Restaurant Owners, and their Vendors; Choco, Choco Payments, and the Bank do not have any responsibility or liability for any consequence resulting from Restaurant Owners' interactions or contracts with their Vendors, including but not limited to, the terms of any sale such as payment, the means by which goods or services are delivered, and any and all other disputes that may arise. Choco, Choco Payments, and the Bank have no responsibility for any Vendor's products, services, or statements. You acknowledge that, by using Choco Payments' Payment Service, the payment terms between you and your Vendors are not altered or changed in any way, including, but not limited to, payment due dates, credit or payment plans, late fees, or refund policies.
(c) Ownership of Underlying Account
At no point or time do funds transmitted by Restaurant Owners to Vendors pass into Choco or Choco Payments' legal ownership. This includes any refunds or chargebacks or any kind of fund movement made through the Payment Service. To offer the Payment Service, Choco Payments makes use of a bank account at the Bank that is held in the Bank's name and also owned by the Bank. This Bank-held account has a title demonstrating it is held for the benefit of Choco Payments' Users, such as Restaurant Owners. Restaurant Owners grant Choco Payments the right to provide instructions to the Bank regarding the use and movement of their funds in this account, including the transfer of funds to the account and the subsequent delivery of funds to the designated Vendor based on the instructions Restaurant Owners provide. The Bank transfers funds for the benefit of Choco Payments' Users, specifically the Restaurant Owners, on Choco Payments' instruction to transfer these funds.
(d) Payment Method Linking
(e) Payment Method Verifications & Representations
Once a Restaurant Owner has added a payment method to his or her User Account, his or her Bank Account may be verified to confirm that it is a valid account. To authorize a Bank Account, up to two (2) small, temporary authorization charges may appear on such Restaurant Owner's bank statement. The Restaurant Owner authorizes Choco Payments to credit up to two (2) micro-deposits, which such Restaurant Owner will be required to enter when prompted to go through the Service. The Restaurant Owner also authorizes Choco Payments to debit his or her Bank Account for the amounts of the two (2) micro-deposits within ten (10) business days.
Each Restaurant Owner represent when adding a payment method to his or her Account that: (i) he or she has the authority to disclose the payment method information and to bind his or her organization or person for which her or she acts; (ii) he or she authorizes the initiation of debit and/or credit entries to the payment method in accordance with instructions provided through the Payment Service (including the initiation of adjustments for transactions made in error); (iii) he or she agrees to and acknowledges that transactions initiated from his or her account must and will comply with US law; (iv) his or her authorization will remain in effect until not later than thirty (30) days after Choco Payments receives written notice from the Restaurant Owner of his or her desire to revoke authorization; and (iv) he or she will not use the Payment Service for personal, family, or household purposes.
Each Restaurant Owner further acknowledges that such Restaurant Owner's use of the Payment Service is subject to any and all existing terms for the applied payment methods, including credit and transactional limits, interest, and rewards programs. Where applicable, Choco Payments and the Bank retain rights and authority for treatment of such payment methods under the Payment Service, and this authority may supersede such Restaurant Owner's payment method program terms.
(f) Vendor Onboarding
To use Choco Payments' Payment Service, each Restaurant Owner must enter the name of the designated Vendors to which such Restaurant Owner seeks to provide payment. Choco Payments will populate the information necessary to effect payments to such Vendors in the Payment Service based on Choco Payments' records.
If such information has not been fully provided to Choco Payments by the designated Vendors, the Vendor will be sent a physical check.
It is each Restaurant Owner's responsibility to verify the identity of the designated Vendor prior to initiating a payment or payments. Choco, Choco Payments, and the Bank will not have liability for any losses or damages due to Restaurant Owner's or the designated Vendor's actions or inactions. If a Restaurant Owner enters a Vendor's identity for payment, he or she represents and warrants that he or she has obtained from the designated Vendor the authorizations set forth in 1.8(e) above.
(g) Submitting Payments
Payments can be submitted for immediate or future processing through the Payment Service. Payment submission requires at least the following to be specified:
a method of payment;
the amount of payment; and
an invoice number.
Choco Payments may require additional information from Restaurant Owner at the time a payment is submitted. This may include, but is not limited to, requesting additional documentation related to a specific payment or additional details regarding the designated Vendor.
(h) Payments Processing
Payments submitted for immediate processing will require successful payment method authorization at time of submission, and payments marked for future processing or schedule payments will require payment method authorization on the Process Date indicated for the payment. If a payment method fails to authorize, Choco Payments and the Bank will be unable to continue to process payment, and Choco Payments will provide notification of the same via the Service.
Payments made through the Payment Service will require sufficient time for a Vendor to receive a payment and debit the account accordingly. The Service will indicate the earliest possible date upon which a payment can be processed. Following the processing date, Choco Payments will employ commercially reasonable efforts to issue payment within (i) one to two business days for credit card payments by Restaurant Owners and ACH credits to the designated Vendor, and (ii) four to five business days for ACH debits from Restaurant Owners and issuances of physical checks to designated Vendors, depending on the size of the payment and subject to "payment review," as described in Section 1.8(j) below.
Each Restaurant Owner will be solely responsible for scheduling payments and selecting a process date for each payment that allows sufficient time for the payment to be delivered on or prior to the bill's due date. Typically, it takes one to two full business days after a selected process date to post an electronic payment and four to five full business days to deliver a check payment within the territorial United States by first class mail. Note, however, that the expected delivery timeframe is a projected estimate based on Choco Payments' historical performance for a given disbursement channel, and is subject to change.
Choco Payments permits payments may be submitted with a process date in the future ("Future Payments"), but must be assigned to a payment method at time of submission which remains valid through the payment processing date. The details of a Future Payment, including associated fees, are locked in at time of submission, except where noted otherwise.
Prior to the processing date you have selected, a Future Payment may be cancelled or edited via the Service. Editing a Future Payment is functionally treated as the deletion of the original Future Payment and creation of a new Scheduled Future, and accordingly may result in alterations not specifically requested including but not limited to recalculation of associated fees, and reiteration of any applicable payment review processes as set forth in Section 1.8(j).
(i) Authorization for Payments
By providing Choco Payments with the name and other information, of designated Vendors to whom a Restaurant Owner wishes to direct payments, such Restaurant Owner authorizes Choco Payments and the Bank to follow the payment instructions provided. To process payments more efficiently and effectively, the Bank, at Choco Payments' instruction, may submit payments to the best known Vendor address. When necessary, the Bank, at Choco Payments' instruction, may alter payment data or data formats or change or reformat Vendor account number to match the account number or format required by Vendor for electronic payment processing.
When Choco Payments or the Bank receive a payment instruction, each Restaurant Owner authorizes Choco Payments and the Bank to debit his or her payment method and remit funds on his or her behalf. Such Restaurant Owner also authorizes Choco Payments or the Bank to credit his or her payment method for payments returned to him or her by the Post Office or the designated Vendor, or payments remitted to him or her on behalf of another authorized User of the Payment Service.
ACH Authorization: Where a Restaurant Owner chooses to pay a Vendor via ACH, Restaurant Owner authorizes Choco Payments or the Bank to debit his or her payment method in increments or as a lump sum and remit funds in accordance with his or her payment instructions through the ACH. Restaurant Owner also gives Choco Payments or the Bank the right to resubmit any ACH debit that is returned for insufficient or uncollected funds, or any other reason. Restaurant Owner agrees that payment transactions will be governed by the rules established by NACHA, the Electronic Payments Association, as in effect from time-to-time, under which he or she is an "Originator", Choco Payments is a "Third Party Service Provider," and the Bank is the "Originating Depository Financial Institutions." For the avoidance of doubt, a Restaurant Owner is responsible for all claims, demands, losses, liabilities and expenses (including attorneys' fees and costs) that result directly or indirectly from his or her failure to perform obligations under the NACHA rules and such Restaurant Owner agrees to indemnify Choco, Choco Payments, and the Bank for the same.
(j) Review of Payments
At any time post submission, payments may be subject to review, to better understand the nature of and reason for such payment. During this review process and for any reason, Choco Payments or the Bank may place a temporary hold on the delivery of such payment for as long as reasonably required to conduct an appropriate inquiry regarding Restaurant Owner, including his or her business, the designated Vendor, a bill, payment history, and other relevant circumstances and factors.
Restaurant Owner acknowledges that Choco Payments' ability to efficiently and effectively review such Restaurant Owner's payment is reliant upon his or her cooperation, and accordingly such Restaurant Owner absolves Choco, Choco Payments, and the Bank from any negative impacts to the delivery of payment arising from delayed, incomplete, or insufficient responses to our inquiries.
Depending on the results of this review, Choco Payments may instruct the Bank to clear the payment, reverse the payment, or hold the payment pending instructions from a government agency. Choco Payments also reserves the right to cancel any payment. In such cases and as permitted by applicable law, funds will be returned to Restaurant Owner via the original payment method, or if necessary via other means.
Vendors or the United States Postal Service may return payments for various reasons including, but not limited to, expiration of Vendor's forwarding address, invalid bank routing number, invalid bank account number, Vendor's remittance address is not correct, Vendor is unable to identify an account, or a Vendor's designated invoice is paid in full. In addition, a Vendor may refuse to accept a payment, and none of Choco, Choco Payments nor the Bank will have liability for any resulting loss or damage. Choco Payments will use commercially reasonable efforts to provide Restaurant Owners with notice of returned payments and will offer them, through the Payment Service, the choice whether to void and credit or void and reissue the payments. Each Restaurant Owner expressly agrees that none of Choco, Choco Payments nor the Bank shall have any liability for any such returned payments. Unless otherwise directed, Choco Payments will void such payments. Each Restaurant Owner hereby authorizes Choco Payments or the Bank to credit such payments to his or her payment method.
(l) Funding Issues
Each Restaurant Owner agrees, at all times, to maintain sufficient funds in the account underlying the selected payment method account to satisfy all obligations including returns, reversals, and associated fees, and to add funds immediately if Choco Payments notifies such Restaurant Owner that the funds are insufficient. Without limiting any other available remedies, if any payment initiated from the selected payment method is returned because of insufficient funds, Choco Payments may require such Restaurant Owner to reimburse Choco Payments (or to the extent applicable, the Bank) for any corresponding payment amount immediately upon demand, plus exceptions processing fees, plus any bank fees, charges or penalties for return items. Choco Payments or the Bank also reserve the right to debit a Vendor's account for money paid to the Vendor on a Restaurant Owner's behalf if payment is returned because of insufficient funds or any other reason. Choco Payments and the Bank reserve the right to withhold funds from a payment to a Vendor if the User has an outstanding balance with Choco Payments. Restaurant Owner shall be solely responsible for all penalties, interest charges, late payment fees and service fees resulting from such a debit to the Vendor.
(m) Future Payment Cancellations
Future Payments may be cancelled, rescheduled or modified by following the directions through the Payment Service. There is no charge for canceling, rescheduling or modifying a payment before it is processed. However, once Choco Payments or the Bank have begun processing a payment, it cannot be cancelled, rescheduled or modified, and a Restaurant Owner must submit a stop payment request.
(n) Chargeback Policy
In the event that a Restaurant Owner initiates a chargeback, clawback, or ACH return for a payment that has already been transmitted to the Vendor, such Restaurant Owner agrees to assign to Choco Payments any claims against the designated Vendor associated with such chargeback, clawback or ACH return. Such Restaurant Owner further agrees that we may contact such designated Vendor directly to request reimbursement for any payment that has been transmitted to the Vendor and for which such Restaurant Owner has initiated a chargeback, clawback, or ACH return.
(o) Stopping Payments and Refunds
Choco Payments' ability to process a stop payment request depends on the payment method and whether or not a check has been cleared. Choco Payments and the Bank must have a reasonable opportunity to act on any stop payment request after a payment has been processed.
Restaurant Owner must contact Choco Payments to stop any payment that has already been processed. Although Choco will use commercially reasonable efforts to accommodate stop payment requests, none of Choco, Choco Payments, nor the Bank will have any liability for failing to do so. Stop payment requests may be subject to additional charges.
In certain situations following a payment submission, Restaurant Owner may request a refund by contacting Choco Payments at firstname.lastname@example.org. The availability of refunds and processes for their execution are dependent on the disbursement channels by which payments are delivered to Vendors. Choco Payments is unable to issue partial refunds of payments.
Choco Payments is also unable to initiate refunds in cases where a Vendor has already received your payment. If this is the case, Restaurant Owner should contact his or her designated Vendor directly to request a refund, pursuant to their payment terms and refund policies.
In the event that Choco Payments issues a payment refund, Choco Payments will generally refund a proportional amount of any fees Choco Payments has charged pursuant to the payment at issue to Restaurant Owner, less any unrecoverable costs Choco Payments may incur. In addition, if such Restaurant Owner effects a payment refund via clawback or chargeback mechanisms, Choco Payments will not refund any portion of any fees Choco Payments has charged pursuant to the payment at issue.
Choco Payments may refund electronic payments, including those delivered via Electronic Fund Transfer ("EFT"), ACH and card network providers, prior to their disbursement.
Choco Payments may refund payments disbursed via check prior to their deposit by the designated Vendor. If Choco Payments or the Bank has already sent a check, we may place a "stop payment" request to ensure it cannot be deposited. In such cases, we suggest that Restaurant Owner contact the designated Vendor to let it know not to deposit the stopped check.
If the designated Vendor attempts to deposit a stopped check, it may be charged a fee from its bank for the exception, which it may attempt to assign to Restaurant Owner. Restaurant Owner accepts the responsibility of notifying the designated Vendor to not deposit such check, and Restaurant Owner agrees not to hold Choco, Choco Payments, or the Bank liable for any costs incurred from the designated Vendor in such a case.
Restaurant Owner understands and agrees that Choco Payments may charge fees for access to and use of the Payment Services. Fees will be charged to the selected payment method, either in a separate transaction from any principal payments or in a single transaction including both amounts, depending on applicable rules.
Fees for immediately processed payments are charged in real-time upon submission. Fees for Future Payments are locked in at time of submission and will be charged on the Future Payment's processing date. If a Future Payment is edited prior to its processing date, the applicable fee will be recalculated based on the presently defined rules.
Fees may vary, depending upon factors including but not limited to the payment's Vendor, the payment method, and other variables both which may or may not be controlled by Choco Payments. Fees are subject to change at any time without prior notice and are calculated in real time and presented during review of the selected payment, prior to submission or edit.
(q) Taxes and Penalties
Restaurant Owner is responsible for all, if any, applicable taxes arising from use of the Payment Service. Restaurant Owner is furthermore responsible for all fees, fines, penalties and other liability incurred by itself, Choco, Choco Payments, or a third party caused by or arising out of such Restaurant Owner's breach of this Agreement, and/or his or her use of the Payment Service. Restaurant Owner agrees to reimburse Choco, Choco Payments, or a third party for any and all such liability.
In the event that Restaurant Owner is liable for any amounts owed to Choco, Choco Payments, or the Bank, including for payments forwarded to Vendors for which such Restaurant Owner initiates a chargeback or ACH return, Restaurant Owner authorizes Choco Payments (on its own behalf and on behalf of the Bank or Choco) to collect such amounts from such Restaurant Owner's default payment method or other available payment methods. If Restaurant Owner does not have sufficient funds available to fulfill such payment, Choco Payments (on its own behalf and on behalf of the Bank or Choco) may engage in collection efforts and/or other legal actions to recover such amounts.
1.9 Cash Incentive Program
At the launch of the Payment Service, and solely for a period exclusively limited to 31 July 2022 ("End Date"), Choco Payments will freely transfer to each Restaurant Owner a single fixed amount of 100 (hundred) U.S. dollars following such Restaurant Owner's first payment to Vendors through the Payment Service ("Welcome Gift").
Where a Restaurant Owner chooses to fund payments to Vendors via ACH, Choco Payments will transfer the Welcome Gift to such Restaurant Owner via ACH. Where a Restaurant Owner chooses to fund payments to Vendors via credit or debit card, Choco will transfer the Welcome Gift to such a Restaurant Owner's email address via a link generated by Ethnio, Inc. ("Ethnio"). Such Restaurant Owner expressly agrees to receive the Welcome Gift to his or her email address via the link generated by Ethnio in accordance with Ethnio's terms and conditions available at https://ethn.io/terms. The link generated by Ethnio will enable the Restaurant Owner to receive the Welcome Gift by selecting one of the different payment methods which include: i) U.S. Amazon cards; ii) eGift Cards (with retailers like Starbucks or Target); iii) U.S. Virtual Visa Card; iv) U.S. UberEats credits, and; v) Paypal transfer.
Nothing in this Agreement shall be deemed to create a payment obligation of the Welcome Gift on Choco, nor shall recognize an enforceable right in favor of Restaurant Owners to obtain the payment of the Welcome Gift from Choco. Without prejudice to the Welcome Gifts already paid by Choco Payments and received by Restaurant Owners, Choco may, in its sole discretion, modify or cancel the Cash Incentive Program at any time preceding the End Date without prior notice, hence Restaurant Owners are responsible for reviewing this page periodically. In no event shall Choco be liable to Restaurant Owners for the non-receipt of the Welcome Gift.
2. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, order information, product information, images, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as "User Content").
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service:
You expressly grant, and you represent and warrant that you have all rights necessary to grant, to Choco a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Company's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. For example, you grant Choco a license to analyze your User Content to identify business trends and create summary reports regarding your orders.
You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement. For example, if you are a Vendor, we will make product information you post available to Restaurant Owners.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person's name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
Your User Content and Company's use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Choco may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Choco takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service, including Vendors' pricing information and Restaurant Owners' order information. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Choco shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the "Choco Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Choco and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Choco Content. Use of the Choco Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation product testimonials and/or other feedback regarding potential improvements to the Service (collectively, "Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Choco under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone, including for our own advertising and marketing purposes. You further acknowledge that, by acceptance of your submission, Choco does not waive any rights to use similar or related ideas previously known to Choco, or developed by its employees, or obtained from sources other than you.
4. Risk of Loss
All products that may be ordered from or via the Service by a Restaurant Owner are transported and delivered to the Restaurant Owner by or on behalf of the applicable Vendor, not by Choco. Title to products ordered on the Service, as well as the risk of loss for such products, is subject to agreement between the Restaurant Owner and Vendor, and Choco hereby disclaims any liability in connection with such risk of loss.
5. California Residents
The provider of services is: Atlantic Food Waste Partners, LLC dba Choco, 33 Irving Place, New York, NY, 10003 United States, telephone [(415) 819 2411]. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
6. Email and Text Messaging
If you use the Service to send email or SMS communications to other Users, then you represent that you have adequate rights to use the Service to send such communications, and must comply with all applicable laws in connection with such communications, including, but not limited to, all applicable notice, consent and consumer choice requirements.
Your privacy is important to us. For more information about our privacy practices, please refer to our Privacy Notice.
Choco cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
9. DMCA Notice
Since we respect artist and content owner rights, it is Company's policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA").
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company's copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Service;
Information reasonably sufficient to permit Choco to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Choco Communications GmbH
Address: Hasenheide 54
Tel.: +49 030 56795626
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys' fees.
Please note that this procedure is exclusively for notifying Choco and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Choco has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Choco may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
10. Third-Party Links and Information
The Service may contain links to third-party materials that are not owned or controlled by Choco. Choco does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and Company's Privacy Notice do not apply to your use of such sites. You expressly relieve Choco from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Content submitted by other Users. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Choco shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless Choco and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party's access and use of the Service with your unique username, password or other appropriate security code.
12. No Warranty
The Service is provided on an "as is" and "as available" basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Choco or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Choco, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, complete, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Service.
Further, Choco does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, including any product offered by a Vendor through the Service, and Choco will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
13. Limitation of Liability
To the maximum extent permitted by applicable law, in no event shall Choco, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. Under no circumstances will Choco be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, Choco assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Choco, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Choco hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Choco has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
14.1 Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Los Angeles County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
14.2 Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Choco. For any dispute with Choco, you agree to first contact us at and attempt to resolve the dispute with us informally. In the unlikely event that Choco has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Los Angeles County, California, unless you and Choco agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney's fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Choco from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
14.3 Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person's Claims. You agree that, by entering into this Agreement, you and Choco are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
15. Additional Terms for Mobile Applications
15.1 Mobile Applications. We may make available software to access the Service via a mobile device ("Mobile Applications"). To use any Mobile Applications you must have a mobile device that is compatible with the Mobile Applications. Choco does not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Choco hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Choco User Account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that Choco may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and Choco or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Choco reserves all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
15.2 Mobile Applications from Apple App Store. The following applies to any Mobile Applications you acquire from the Apple App Store ("Apple-Sourced Software"): You acknowledge and agree that this Agreement is solely between you and Choco, not Apple, Inc. ("Apple") and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Choco as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Choco as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party's intellectual property rights, Choco, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Choco acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
15.3 Mobile Applications from Google Play Store. The following applies to any Mobile Applications you acquire from the Google Play Store ("Google-Sourced Software"): (i) you acknowledge that the Agreement is between you and Choco only, and not with Google, Inc. ("Google"); (ii) your use of Google-Sourced Software must comply with Google's then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Choco, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Company's Google-Sourced Software.
16.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Choco without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
16.2 Notification Procedures and Changes to the Agreement. Choco may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Choco in our sole discretion. Choco reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Choco is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Choco may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the 'last modified' date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
16.3 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Choco in connection with the Service, shall constitute the entire agreement between you and Choco concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
16.4 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
16.5 Contact. Please contact us at with any questions regarding this Agreement.