Terms of Service
SECTION 23 BELOW ENTITLED “BINDING INDIVIDUAL ARBITRATION” CONTAINS A MANDATORY ARBITRATION PROVISION. IT AFFECTS HOW DISPUTES WITH Ditch the Kitch ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.
2. Ditch the Kitch ACCOUNT REGISTRATION
You must open an account with us (a “Ditch the Kitch Account”) to use the Services. During registration, we will ask you for information, including your name, email and other personal information. You must provide accurate and complete information in response to our questions and keep that information current. In order to create your Ditch the Kitch Account, you will be required to select a password. Please choose a strong password and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further, understand that you are solely responsible and liable for any activities that occur under your Ditch the Kitch Account. We reserve the right to suspend or terminate the Ditch the Kitch account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
3. REVISIONS, DISCLOSURES AND NOTICES
We may amend the TOS or our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of our Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 22) that arose before the changes will be governed by the TOS or Policies in place when the Dispute arose.
4. DITCH THE KITCH SERVICES
Ditch the Kitch provides advertising and marketing services to independently operated restaurants (“Restaurants”) on our Website and through our Services. Ditch the Kitch is not the retailer of any products offered by Restaurants.
The Restaurants are solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the preparation, sale of, marketing, and packaging of all products ordered through Caviar, and updating their menu and menu prices. Each Restaurant is solely liable for the quality, safety, and freshness of its products, and Ditch the Kitch does not verify the credentials, representations, products, services or prices offered by the Restaurants, and does not guarantee the quality of the product or services, or that any Restaurant or Restaurant product service complies with applicable laws. Ditch the Kitch will not be liable or responsible for any products or services provided by Restaurants that are a cause of injury or that are unacceptable to or do not meet your expectations in any manner
Independent contractors (each a “courier”) have entered into agreements with Ditch the Kitch to provide delivery services. Ditch the Kitch does not offer such delivery services, and has no responsibility or liability for any courier. Ditch the Kitch will not be liable or responsible for any delivery services provided by couriers or any errors or misrepresentations made by them. Drivers are required to comply with all applicable laws, rules and regulations.
You are solely responsible for verifying the accuracy of your delivery address, and Ditch the Kitch will have no liability or responsibility for any such erroneous addresses.
5. ACCOUNT ACCESS
By agreeing to these TOS, you represent and warrant to us: (a) that you are at least eighteen (18) years old; (b) that you have not previously been suspended or removed from the Service; (c) you are eligible to register and use the Services and have the right, power and ability to enter into and perform under these TOS; and (d) you will not use the Services, directly or indirectly for any fraudulent undertakings in any manner and your use of the Services will be in compliance with these TOS and applicable Additional Terms. If you are using the Service on behalf of an entity, organization or company, you represent and warrant that you have authority to bind the organization to these TOS and you agree to be bound by these TOS on behalf of that organization.
6. TRANSACTIONS INVOLVING ALCOHOLIC BEVERAGES
Ditch the Kitch does not sell alcoholic beverages. Ditch the Kitch is a delivery company that provides services to Restaurants or other establishments that may hold alcohol beverage licenses (hereinafter, “Alcoholic Beverage Suppliers”). Ditch the Kitch acts as a third-party provider and has no responsibility or liability to you for any alcoholic beverage products you purchase from Alcoholic Beverage Suppliers. Any claims or disputes you have regarding Alcoholic Beverage Supplier products will be the responsibility of the Alcoholic Beverage Supplier and must be brought by you directly to the Alcoholic Beverage Supplier.
If you wish to purchase alcoholic beverages from Alcoholic Beverage Suppliers, you must be at least 18 years old ("Legal Age"), provide age verification, and consent to having such verification shared with the Alcoholic Beverage Suppliers.
By placing an order for alcoholic beverages, you expressly represent and warrant that:
You are of Legal Age;
You will provide bona fide government-issued photo identification showing your Legal Age upon delivery or pickup;
You are purchasing alcoholic beverages for personal consumption and not for resale or any other commercial purpose; and
You are not procuring alcohol from Alcoholic Beverage Suppliers for the person(s) under the Legal Age.
Ditch the Kitch reserves the right to report any actions by you that would violate alcohol beverage laws, including but not limited to misrepresentation of age and procuring alcoholic beverages for the person(s) under age 21, to law enforcement authorities.
Ditch the Kitch does not charge any additional fee with respect to alcoholic beverages or your purchase of alcoholic beverages from Alcoholic Beverage Suppliers. When you place an order for alcoholic beverages using the Services ("Alcoholic Beverage Order"), such Alcoholic Beverage Order will be either accepted or rejected by the Alcoholic Beverage Supplier to whom the Alcoholic Beverage Order was placed. Neither Ditch the Kitch nor any courier has any authority to accept your Alcoholic Beverage Order, and no sale pursuant to your Alcoholic Beverage Order will become final unless and until Alcoholic Beverage Supplier accepts your Alcoholic Beverage Order.
For any Alcoholic Beverage Order accepted by an Alcoholic Beverage Supplier (such accepted sale an "Alcoholic Beverage Purchase"), your credit card will be charged, and that portion of the funds from your credit card payment that relates to the Alcoholic Beverage Purchase will be deposited into an account for the benefit of Alcoholic Beverage Supplier in compliance with applicable alcoholic beverage laws.
7. LIMITATIONS ON USE AND RULES OF CONDUCT
By using the Website and Services, you agree not to: use the Services for commercial purposes or in any way that is unlawful, or harms us or any other person or entity; use any information obtained from the Website or the Services in order to contact, advertise to, solicit, or sell to any user or restaurant; upload, download, post, email, transmit, store or otherwise make available any Content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libellous, abusive, violent, obscene, vulgar, invasive of another's privacy, hateful, racially or ethnically offensive, or otherwise objectionable;
stalk, harass, threaten or harm another;
pretend to be anyone or any entity, you are not — you may not impersonate or misrepresent yourself as another person (including celebrities), entity, another subscriber, a Caviar employee, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity (including the creation of additional accounts after termination by us for violation of the TOS);
engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
post, send, transmit or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters, including, without limitation, bulk commercial advertising and informational announcements; forge any TCP-IP packet header or any part of the header information in an email or a newsgroup posting, or otherwise putting information in a header designed to mislead recipients as to the origin of any Content transmitted through the Service ("spoofing");
upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;
access or monitor any material or information on any Ditch the Kitch system using any manual process or robot, spider, scraper or other automated means;
perform or attempt to perform any actions that would interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon);
plan or engage in any illegal activity; and/or gather and store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited activities.
We cannot and do not assure that other users are or will be complying with the foregoing limitations on use and rules of conduct or any other provisions of these TOS, and, as between you and us, you assume all risk of harm or injury resulting from any such lack of compliance.
Violations of any of these TOS may result in termination of your account. We reserve the right to modify these limitations on use and rules of conduct in accordance with Section 3.
8. CONTENT AND SUBMISSIONS
With the exception of Submission (defined below) all information, materials, functions and other content ("Content") contained on the Services are owned by or licensed to Caviar and are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, slogans, service marks, trade names, logos, and trade dress are proprietary to us and/or our licensors or licensees. We may change the Services or delete Content or features at any time, in any way, for any reason.
Except as we specifically agree in writing, no Content from the Services may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Services, not even as part of a derivative work. Using our Content for any other purpose, including but not limited to "re-mailing" or high-volume or automated use of the Services or using any of our Content on any other website or networked computer environment, is a violation of our copyright and other proprietary rights and is strictly prohibited.
YOU ACKNOWLEDGE AND AGREE THAT NOTHING IN THESE TOS WILL HAVE THE EFFECT OF TRANSFERRING THE OWNERSHIP OF ANY COPYRIGHTS, TRADEMARKS, SLOGANS, SERVICE MARKS, TRADE NAMES, TRADE DRESS OR OTHER PROPRIETARY RIGHTS IN THE SERVICES OR CONTENT OR ANY PART THEREOF TO YOU OR ANY THIRD PARTY NOR TO AUTHORIZE YOU TO CREATE DERIVATIVE WORKS BASED ON THE CONTENT.
In these TOS, we use the word "Submissions" to mean text, messages, ideas, concepts, pitches, suggestions, treatments, formats, artwork, photographs, drawings, videos, audiovisual works, characterizations, your and/or other persons' names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute (collectively, "Distribute") on or through the Services.
You agree that any Submissions you make is not being made in confidence or trust and may not be private communications and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type. Accordingly, we, our licensees, distributors, agents, representatives and other authorized users will be entitled to use and disclose all Submissions, and we will not be liable to you or to any person claiming through you for any exploitation or disclosure of any Submission.
We may provide you with an area, site or feature as part of any Services that offers the opportunity for users to Distribute Submissions for viewing by one or more Services' users, including a chat area, message board or social community environment (“Public Forum”). We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk.
Subject to applicable law, you are and will remain solely responsible for the Submissions you Distribute on or through any Services under your username or otherwise by you in any Public Forum and for the consequences of submitting and posting same.
We reserve the right to screen, refuse to post, remove, modify, edit, store and/or review Submissions at any time and from time to time and for any or no reason including, without limitation, to ensure that the Submissions conforms to the rules of conduct, in our absolute and sole discretion without prior notice.
You understand that by using the Service you may encounter Content that you may find offensive, indecent, or objectionable, and that you may expose others to Content that they may find objectionable. Caviar is not responsible or liable for nor do we endorse in any way any Content provided by others and has no duty to pre-screen such Content.
9. LICENSES AND REPRESENTATIONS
You grant us and our licensees, distributors, agents, representatives and other authorized users, a non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license for an indeterminate period (or for such maximum period permitted by applicable law) under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual and industrial property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised (including on the Site, on third party websites, on our broadband and wireless platforms, products and services, on physical media) for any and all purposes including, without limitation, entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the "Submissions License").
To the extent that we solicit Submissions through features or activities on or through the Services (including games, sweepstakes, contests, promotions, and Public Forums that require the use of our copyrighted works (in whole or in part), we grant you a non-exclusive license to create a derivative work using our copyrighted works (in whole or in part) as required (but only as required, and only for the purpose of creating your Submissions); provided that such license will be conditioned upon your assignment of all rights in the work you create to us. If such rights are not assigned to us, your license to create derivative works using our copyrighted works (in whole or in part) will be null and void. You agree to the foregoing grant of rights, consents, agreements and assignments whether or not your Submissions are used by us.
10. REFERRAL PROGRAMS
From time to time, we may offer referral programs or incentives for inviting others to use the Service (a "Referral Program"). Any credits or incentives under such Referral Program will be subject to the then current Referral Program terms and at our sole discretion, which can be found here.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. These communications may be generated by automatic telephone dialing systems which will deliver prerecorded messages, including for the purposes of secondary authentication, reminders, and other notifications. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you. You may also opt-out of text messages from Caviar at any time by texting STOP to the number in your transactional text message. You acknowledge that opting out of receiving communications may impact your use of the Services.
You agree to pay all charges, including gratuities, fees and taxes, and any part thereof, when you purchase, use, or participate in a Service from Caviar. All fees are exclusive of applicable taxes, unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the services provided to you. Ditch the Kitch may change the fees for the Service at any time. Cancellations are subject to our cancellation policy, posted here.
14. CREDIT CARD OR OTHER PAYMENT SERVICE AUTHORIZATION
You may be asked to provide us with a credit card number from a card issuer or other payment information that we accept in order to activate and/or pay for any fees related to the Service. We may seek pre-authorization of your credit card or other payment information prior to a purchase to verify that the credit card or payment information is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
You may terminate your account and/or stop using the Service at any time. To terminate your account see your account settings. Any fees paid by you prior to your termination are nonrefundable (except as expressly permitted otherwise by these TOS). Termination of your account will not relieve you of any obligation to pay any accrued fees or charges. We may at any time, under any circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Any such termination or suspension will be made by us in our sole discretion, without any refund to you of any prepaid fees or amounts, and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service.
16. EFFECT OF TERMINATION
Upon termination of your account you lose all access to the Service and any portions thereof, including, but not limited to, your Caviar Account. In addition, Ditch the Kitch may delete all information and data stored in or as a part of your account(s) including, but not limited to, data files, email, preferences and Submissions. Any individual components of the Service that you may have used subject to separate agreement will also be terminated in accordance with such separate license.
Certain Content, components or features of the Service may include materials from third parties and/or hyperlinks to other websites, resources or Content. Because Ditch the Kitch may have no control over such third party sites and/or materials, Ditch the Kitch is not responsible for the availability of such sites or resources, and does not endorse or warrant the accuracy of any such sites or resources, and will in no way be liable or responsible for any Content, advertising, products or materials on or available from such sites or resources. You further acknowledge and agree that Ditch the Kitch will not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such Content, advertising, products or materials on or available from such sites or resources.
18. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Ditch the Kitch AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, CAVIAR AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE VOUCHERS OR OTHER ITEMS PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Ditch the Kitch OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
19. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Ditch the Kitch AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF Ditch the Kitch HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL CAVIAR'S LIABILITY IN CONNECTION WITH ANY SERVICE, INCLUDING ANY VOUCHER, EXCEED THE AMOUNT PAID FOR ANY SUCH SERVICE BY YOU.
You will defend, indemnify and hold Ditch the Kitch its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from and against any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) your violation of any third-party right, including without limitation any right to privacy, publicity rights or Intellectual Property Rights, including Submissions you Distribute through the Services; (b) your wrongful or improper use of the Services; (c) any actual or alleged breach of your representations, warranties, and obligations set forth in these TOS; (d) your violation of any rights of another; and (e) your violation of any law, rule or regulation of the United States or any other country. This obligation will survive the termination or expiration of these TOS and/or your use of the Services. You are responsible for all use of the Services using your account, and that these TOS apply to any and all usage of your Member Account. You agree to comply with these TOS and to defend, indemnify and hold harmless Caviar from and against any and all claims and demands arising from usage of your Member Account, whether or not such usage is expressly authorized by you.
You acknowledge and agree that the seller of any food or beverage the applicable Restaurant and, that as the seller, the Restaurant will be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by you, caused in whole or in part by the Restaurant, as well as for any unclaimed property liability arising from unredeemed orders or portions thereof. You waive, and release Ditch the Kitch and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to any act or omission of a Restaurant in connection with the goods provided in connection therewith and/or as it relates to compliance with applicable laws.
“Disputes” are defined as any claim, controversy, or dispute between you and Ditch the Kitch, its partners (or their respective affiliates, agents, directors, or employees) including any claims relating in any way to these TOS, any Additional Terms, or the Services, or any other aspect of our relationship.
23. BINDING INDIVIDUAL ARBITRATION
You and Ditch the Kitch agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST Ditch the Kitch. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) according to this Section and the applicable arbitration rules for that forum The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services..
24. GOVERNING LAW
These TOS and any Dispute will be governed by Canadian law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within Canada, without regard to its choice of law or conflicts of law principles.
25. LIMITATION ON TIME TO INITIATE A DISPUTE
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
These TOS, and any rights and licenses granted hereunder, may not be transferred or assigned by your and any attempted transfer or assignment will be null and void.
These TOS and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and Ditch the Kitch regarding the Services. In the event of a conflict between these TOS and any other Ditch the Kitch agreement or Policy, these TOS will prevail and control the subject matter of such conflict. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. If any part of these TOS or Additional Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of Caviar to exercise or enforce any right or provision of these TOS will not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these TOS, there will be no third-party beneficiaries to these TOS.