These Terms of Use determine the use of the “Thermomix® Recipe Platform” (in the following “Cookidoo®”), which is provided by Vorwerk, LLC, 3255 E. Thousand Oaks Blvd., Thousand Oaks, CA 91362 (in the following “Vorwerk”) available at www.cookidoo.thermomix.com where users may subscribe to digital recipes which run or are displayed on specific Thermomix® cooking appliances or mobile devices (in the following “Recipes”) and further cooking-related and Thermomix®-related content and services (Recipes and such content in the following “Content”, respective services in the following “Services”). Cookidoo® may be accessed via the website or, if offered in the User’s country of residence, the mobile Vorwerk app “Cookidoo” (in the following the “App”). These Terms of Use govern any agreement between Vorwerk and the user (in the following the “User”), both hereinafter referred to as “Parties”) regarding Cookidoo® and the App.
IMPORTANT- THESE TERMS CONTAIN 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.
These Terms of Use apply to any access and use of Cookidoo®, including mere access to the website, paid subscriptions (in the following “Paid Subscriptions”) and subscriptions that are free of charge for the User, like e.g. trial periods or free periods of use which can be made available to the User via vouchers (in the following “Free Subscriptions”, Paid Subscriptions and Free Subscriptions in the following “Cookidoo® Subscriptions”). Vorwerk may offer different subscription plans. The subscription plans may include different services and Cookidoo® features. A subscription plan may be a Paid Subscription or a Free Subscription (“Subscription Plan”). The Subscription Plans are described on Cookidoo®. Vorwerk reserves the right to offer individual Subscription Plans.
1.1.1 Use of Cookidoo® is only possible after prior registration. Vorwerk reserves the right to make certain content also available to non-registered users, such as recipe previews; however, the availability of such content is subject to Vorwerk’s sole discretion.
1.1.2 Upon registration, the User must provide correct and complete information. In the event of the user data being or becoming incorrect or incomplete, the User must update these data.
1.1.3 The User undertakes to keep secret the access data used to access Cookidoo® (“Access Data”). Furthermore, the User is in general responsible for any and all activities that occur under the own account, including account sharing as set out in Section 1.1.4 below.
1.1.4 The Users may share their Cookidoo® accounts with other members of their household. For this purpose, the Users may share the Access Data with these persons. The obligations of Section 1.1.3 and of other Sections of these Terms of Use also apply to the Users when other members of the household use the Users’ access to Cookidoo®.
1.1.5 The User shall notify Vorwerk immediately of any unauthorized use of the account or any other security breaches.
1.1.6 In accordance with these Terms of Use, the User may subscribe to the Content and Services for a limited period of time in form of a Cookidoo® Subscription. The respective price for the Paid Subscriptions will be displayed to the User in advance.
1.1.7 If Recipes were created for specific Thermomix® cooking appliances, such Recipes may only be used with these specific appliances and not with other Thermomix® cooking appliances.
1.1.8 The User shall not:
(i) work around any technical limitations of Cookidoo®, the Content or the App;
(ii) hack or modify Cookidoo® or the App;
(iii) modify the Content, in particular the Recipes;
(iv) use Cookidoo® or the App for any purpose that is unlawful or prohibited by these Terms of Use or use Cookidoo® in any manner that could damage, disable, overburden or impair the infrastructure behind Cookidoo® and the App.
1.1.9 Vorwerk reserves the right to discontinue providing the infrastructure behind Cookidoo® and the App; however, not before the termination of a current Cookidoo® Subscription. Vorwerk will notify the User about such discontinuation via email to the address provided by the User.
1.1.10 Vorwerk reserves the right to restrict access to particular functions or to disable the User’s account in case that the User violates these Terms of Use.
1.2.1 The User can obtain the App from a store for mobile apps (“App Store”), which is provided by a third party. In case that the App is not offered for free, the purchase price for the App will be displayed to the User in advance. In case that the User decides to purchase the App, the User has to confirm the purchase by using a corresponding function in the App Store.
1.2.2 Any agreement with regard to the distribution of the App (e.g. in form of a purchase or for free), is a separate agreement that is not governed by these Terms of Use.
1.2.3 Some functions of the App do require an active internet connection of the mobile device, i.e. individual functions cannot be used without an active internet connection. Additional costs may arise in connection with the use of such individual functions of the App over the Internet, depending on your mobile contract.
1.2.4 The use of the App requires a compatible smartphone or any other compatible device.
1.3.1 The Content, in particular the Recipes, but also further content such as pictures and videos as well as the App are protected by copyright.
1.3.2 Vorwerk hereby grants the User a non-exclusive, non-transferrable and non-sublicensable right to use the Content and the App for the purposes permitted under these Terms of Use (“Usage Right”). The User may only download and use the Content and the App on devices designated for such download.
1.3.3 The User is only allowed to reproduce Content and the App to the extent that this is necessary for the contractual use. The User may not lease or rent the Content or the App to third parties.
1.3.4 The Content and the App may be used by the User for own non-commercial purposes and only as permitted under these Terms of Use. Any commercial use of Content and App is subject to Vorwerk’s prior written consent. Content may not be copied, sold or otherwise be reproduced, unless Vorwerk has given its explicit written consent.
1.3.5 Any unauthorized use, including the reproduction of Content or the App or the transfer of Content or the App to third parties, is not allowed.
2.0.1 For the use of the Customer Recipes’ service (as referred to on the Platform with “Created recipes”, the provisions of this Section 2 apply in addition to the other Sections of these Terms of Use to the extent that the respective feature is a part of the User’s Subscription Plan.
2.1.1 In addition to the Recipes (provided by Vorwerk), in the Customer Recipes area of Cookidoo®, the User may create own recipes, which can consist of recipe texts, supplementary texts, photos and other content (in the following “Self-Created Recipes”). The User may also add recipes to the Cookidoo® account by importing recipe texts and photos from third-party websites using the import function (in the following “Imported Recipes”). Self-Created Recipes and Imported Recipes are referred to jointly as “Customer Recipes” in the following.
2.1.2 Depending on technical and legal feasibility of Cookidoo® and subject to the User’s Subscription Plan, Vorwerk technically enables the User to share own Customer Recipes with a number of personal contacts as designated in the User’s Subscription Plan and to receive Customer Recipes shared by personal contacts respectively (in the following: “Customer Recipe Sharing” and “Shared Customer Recipes”). The User may add Shared Customer Recipes to the Cookidoo® account; however, the User may not share Shared Customer Recipes which have been received from other users.
2.1.3 Furthermore, and depending on technical and legal feasibility of Cookidoo®, specified Users may make Customer Recipes publicly available (“Publish”) to all other users on Cookidoo® (in the following “Customer Recipe Publishing” and “Published Customer Recipes”). Customer Recipe Sharing may be subject to further conditions.
2.2.1 The User who creates Self-Created Recipes or imports Imported Recipes to their own Cookidoo® account is fully responsible for them, especially concerning their content and sufficient usage rights. The User is also fully responsible for Customer Recipes with regard to safety and the intended use of Thermomix® cooking appliances when using Customer Recipes. In this context, the User is responsible in particular for compliance with Vorwerk’s general use and safety instructions published by Vorwerk for the User’s respective Thermomix® cooking appliance.
2.2.2 The User may not add Customer Recipes to their Cookidoo® account, share them or publish them, which contain
(i) content other than for cooking recipes for food and beverages for human consumption (containing instructions and tips on ingredients and their preparation) plus a photo of the respective dish;
(ii) ingredients or instructions which may cause harm or damage to the User, other users, to the Thermomix® cooking appliances or to third parties’ health or property;
((i) and (ii) in the following "Content Restrictions"; or
(iii) third-party content which the User may not use, share or publish for legal reasons, including for regulatory reasons, for lack of intellectual property rights (e.g., copyrights) or for contractual restraints towards third parties. In particular, the User has to make sure that the import of Imported Recipes does not violate the terms of use of the respective third-party website.
The foregoing applies accordingly for the amendment or alteration of pre-existing Customer Recipes by a User.
2.2.3 Customer Recipes are not provided by Vorwerk but by other users or third parties. Thus, a reasonable degree of caution is necessary when using these Customer Recipes. Vorwerk may not be held liable for the content and the permissibility of these Customer Recipes
2.2.4 Vorwerk’s obligations and responsibilities regarding the Customer Recipes shall be limited to operating the platform and to acting as a mere hosting provider, enabling users to use and exchange Customer Recipes. Vorwerk has not reviewed Customer Recipes as to their content and to possibly missing usage rights, if any. Thus, Vorwerk cannot be held liable for the contents of, or rights to, the Customer Recipes. However, and notwithstanding Sections 2.2.1, 2.2.2 and 2.4 below, Vorwerk reserves the right to take down and block a Customer Recipe after being notified that such Customer Recipe may violate the Content Restrictions (as defined in Section 2.2.2) or may infringe any third-party rights or applicable law.
Users and third parties may contact Vorwerk regarding copyright and trademark infringements based on the Customer Recipes as follows. Only the intellectual property rights owner or the owner's authorized agent is permitted to report potentially infringing materials through Vorwerk's reporting system.
If the User are not the intellectual property rights owner or the owner's authorized agent, the User should contact the intellectual property rights owner and they can choose whether to use the procedures set forth below.
Notification: Vorwerk respects the intellectual property rights of others, and we require the User to do the same when interfacing with the Services.
Vorwerk may, in appropriate circumstances and at our discretion, terminate the Service and/or access to the Services for users who infringe the intellectual property rights of others. Vorwerk has a policy to address repeat infringers and may terminate the account and the access rights to the Services of any repeat infringer. If the User believe that the User’s work is the subject of copyright infringement and/or trademark infringement and appears on the Services, please provide Vorwerk's designated agent the following information:
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a full list of such works at that site.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled on the Service, and information reasonably sufficient to permit Vorwerk to locate the material.
• Information sufficient to permit Vorwerk to contact the User as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the User may be contacted.
• A statement that the User have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that the User are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Vorwerk's agent for notice of claims of copyright or trademark infringement on this Service can be reached as follows:
By mail (this will take longer to receive and process)
DMCA Agent
3255 E. Thousand Oaks Blvd.
Thousand Oaks, CA 91362
By e-mail
legal@thermomix.us
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
2.3.1 In creating and importing Customer Recipes, the User grants the respective necessary rights to these (in the following “Usage Rights”) to Vorwerk. Unless stipulated otherwise, the Usage Rights are limited to the respective Scope of Use designated by the User (cf. Section 2.3.2 below), granted on a non-exclusive basis, unlimited in terms of territory, may be transferred or sublicensed by Vorwerk to third parties to the extent necessary to operate Cookidoo® (especially to affiliated companies of Vorwerk), and are free of charge. They are unlimited in terms of time and are thus not terminated together with a termination of the Cookidoo® Subscription, unless stipulated to the contrary hereinafter.
2.3.2 Unless stipulated otherwise and within the limits of the respective Scope of Use as defined below, the Usage Rights include in particular the right to reproduce, to distribute, to make publicly available, to broadcast, to edit the Customer Recipe for technical or editorial reasons and to reproduce it by means of visual and audio media. Should new technical possibilities for the use of the Customer Recipes become known, the Usage Rights shall extend to those as well. If the Customer Recipe contains the name or other personal data of the User, the Usage Rights shall also cover these. The scope of Usage Rights relates to the following scope of use of the User (in the following “Scope of Use”):
2.3.2.1 When a User adds a Customer Recipe to the Cookidoo® account, the Usage Rights cover the User's Cookidoo® account to which the Customer Recipe may be stored (reproduced), distributed, made available, broadcast etc. To this extent exclusively, the Usage Rights shall terminate when the Subscription of the User terminates.
2.3.2.2 When a User shares a Customer Recipe (Customer Recipe Sharing), the Usage Rights cover also the Cookidoo® accounts of the respective users the Customer Recipe was shared with. Moreover, the User grants the respective other users Usage Rights to the Customer Recipe to the extent set out in Section 1.3 above. The term of these Usage Rights is independent from the Cookidoo® Subscription of the User; thus, Vorwerk may continue to provide access to Customer Recipes to the recipients of such Customer Recipes also after a termination of the User's Cookidoo® Subscription.
2.3.2.3 When a User publishes a Customer Recipe to all other users on Cookidoo® (Customer Recipe Publishing), 2.3.2.2 applies accordingly, however covering the Cookidoo® accounts of all other existing and future users. In addition, Vorwerk shall be entitled to use such a Customer Recipe for promotion of, and advertising for, Cookidoo® and grant respective licenses to third persons, e.g., advertising agencies, for these purposes.
2.4.1 The User warrants to have the necessary rights to grant the Usage Rights according to Section 2.3 above and that such grant of rights does neither violate applicable law nor infringe the rights of third parties, especially copyrights. Moreover, the User shall be liable for all violations of obligations and responsibilities as set out in Sections 2.2.1 and 2.2.2 above.
2.4.2 Notwithstanding its rights under applicable statutory law, Vorwerk shall be entitled to take down and block any Customer Recipe that violates the User's obligations under Sections 2.2.1, 2.2.2 and 2.3 above; moreover, Vorwerk may, with immediate effect, disable the User's account in accordance with Section 1.1.10 and terminate the User's Cookidoo® Subscription in accordance with Section 3.5.8
3.1.1 The User will be able to subscribe to Content and Services provided on Cookidoo®.
3.1.2 The main characteristics of the Subscription Plans, including its price, are listed on the description page of the respective Cookidoo® Subscription Plan.
3.1.3 The User will select the desired Cookidoo® Subscription Plan at the beginning of the order process. IMPORTANT-Subscription Plans will automatically renew as set forth in Clause 3.5 below.
3.1.4 In case of a Paid Subscription, the User accepts, by clicking on the button “Buy Now”, Vorwerk’s legally binding offer with regard to the Cookidoo® Subscription. The agreement is concluded and comes into effect immediately after the click on the “Buy Now” button by the User. The User will receive a confirmation of the agreement via email.
3.2.1 A Free Subscription ends at the end of the specified period, unless the User’s Subscription Plan provides for an unlimited term. Free Subscriptions will not lead to an automatic transition to a Paid Subscription. However, in case of an existing Paid Subscription, the redemption of a voucher for a Free Subscription may extend the Term of a Paid Subscription, without any additional remuneration for this extension.
3.2.2 The redemption of vouchers for Free Subscriptions may be subject to additional conditions, which shall be communicated to the User at the latest upon provision of the voucher. In the event of a conflict between the additional conditions and these Terms of Use, the additional conditions shall prevail.
3.3.1 In case of a Paid Subscription, the User will pay the agreed price to Vorwerk.
3.3.2 All prices shown include value-added tax and any other applicable price components, except for additional credit card charges that may apply, which are charged by third parties, such as payment providers, and which are not invoiced by Vorwerk. The User may consult the respective third party for further information on applicable credit card charges.
3.3.3 The payment for a Subscription becomes due at the first day of each subscription period as specified in the Subscription Plan. In the event of subscriptions with an unlimited term, the payment is due and payable until the first day of the respective payment period as specified in the Subscription Plan. One-time payments are due with the conclusion of the agreement.
3.3.4 The methods of payment available are provided to the User before any order. Vorwerk offers the User to pay by credit or debit card (Master Card or Visa) or by additional payment methods if listed on Cookidoo®.
3.3.5 Vorwerk reserves the right to offer a possibility to pay for subscriptions through prepaid vouchers. Prepaid vouchers are vouchers Customers may buy e.g. from Vorwerk or from distributors. Customers may redeem vouchers on the local Cookidoo® website of the country in which they purchased the vouchers. If no local Cookidoo® website exists for that country, customers may redeem the prepaid vouchers on the international Cookidoo® website. The sale of such prepaid vouchers may be subject to terms and conditions of the respective seller. These Terms of Use do not apply to the sale of prepaid vouchers.
3.4.1 In case of a Paid Subscription, the Cookidoo® Subscription will be activated after payment by the User.
3.4.2 In case of a Free Subscription, the Cookidoo® Subscription will be activated after the User has successfully completed the registration process on Cookidoo®.
3.5.1 The User may use the subscribed Content during the term of the Cookidoo® Subscription unless the account of the User has been disabled according to the above Section 1.1.10 of these Terms of Use. After the termination of the Cookidoo® Subscription, the subscribed Content will no longer be available to the User.
3.5.2 In case of a Paid Subscription, the Cookidoo® Subscription has a minimum term of one year, beginning with its activation, unless agreed otherwise. Vorwerk reserves the right to offer additionally a minimum term of 30 days, or other minimum terms as agreed otherwise. In such case, the User is free to choose between the offered minimum terms.
3.5.3 Unless agreed otherwise, a Paid Subscription will automatically renew at the end of the respective minimum term for further terms of the same duration as the minimum term each, provided that neither Party cancels the Paid Subscription prior to the renewal. The User will receive a reminder email about the impending renewal one week prior to the renewal of a 30-days subscription (if any) or 30 days prior to the renewal of the annual subscription. In this reminder email, Vorwerk will inform the User once again, inter alia, about the significance of not cancelling the current Paid Subscription prior to its renewal and on the costs for the impending renewal of the Paid Subscription.
3.5.4 The renewal of the Paid Subscription pursuant to Section 3.5.3 does not entail a right of withdrawal.
3.5.5 In case of discontinuation of the provision of Cookidoo® as referred to in Section 1.1.9 of these Terms of Use, no automatic renewal will take place. The User will receive then a notification email about the impending termination and discontinuation of Cookidoo®.
3.5.6 Either Party may terminate the Cookidoo® Subscription at any time with effect to the end of the respective term.
3.5.7 Terminations of Paid Subscriptions must be made in writing or in text form (e.g. via email to service@thermomix.us). The User may also terminate any Cookidoo® Subscription, including Paid Subscriptions, via Cookidoo® itself.
3.5.8 Both Parties’ right of extraordinary termination for cause remains unaffected.
4.1.1 The following information and stipulations are mandatory under appliable laws in some countries.
4.1.2 Vorwerk’s offers are legally binding.
4.1.3 The exclusive language available for the conclusion of the agreement is English.
4.1.4 The essential contract data, such as term of the agreement and remuneration, will be stored by Vorwerk in electronic form and made accessible to the User through Cookidoo®. Additionally, an electronic copy of the particular agreement with the User will be sent to this User together with these Terms of Use via email.
4.1.5 The Recipes provided on Cookidoo® are for information purposes only and any food that may be prepared on the basis of these Recipes may vary depending on a number of variables (e.g. quality and composition of used products, weather, environment, expertise and techniques of the User, etc.). Vorwerk does not assure any end results.
5.1.1 All liability of Vorwerk, in particular with regard to any claims of the User for compensation and the reimbursement of any expenditure incurred without effect, shall be based solely upon this clause 5.1, regardless of the legal nature of the claim.
5.1.2 TO THE FULLEST EXTENT OF THE LAW, NEITHER Vorwerk NOR ITS LICENSORS SHALL BE LIABLE TO THE USER FOR ANY DAMAGES RESULTING FROM THE USER’S USING, DISPLAYING, COPYING, OR DOWNLOADING THE SERVICES, RECIPES, COOKIDOO® AND/OR THE APP. IN NO EVENT SHALL Vorwerk OR ITS LICENSORS BE LIABLE TO THE USER FOR ANY DAMAGE FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, INCOME, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF Vorwerk OR ITS LICENSORS KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. Vorwerk IS NOT RESPONSIBLE FOR ANY ECONOMIC EXPECTATIONS THAT THE USER MAY HAVE. VORWEK’S AGGREGATE LIABILITY, AND THAT OF ITS AFFILIATES AND LICENSORS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, TO THE USER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE ACTUAL FEES PAID TO US BY THE USER IN THE PRECEDING THREE (3) MONTHS OR (B) US$100 DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE USER. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED
5.1.3 The limitation of liability also applies respectively in favour of the employees, agents, legal representatives and assistants of Vorwerk.
5.1.4 Vorwerk is not liable for any Recipes and other use recommendations if and to the extent that use and safety instructions have not been complied with.
5.1.5 Any contents that are published by Vorwerk on Cookidoo® and the App are compiled with utmost diligence. Vorwerk does, however, not assume any warranty that such contents are technically correct, complete and up to date.
5.2.1 Vorwerk reserves the right to amend these Terms of Use in case that this becomes necessary due to the further development of Cookidoo® or the App or because new functionalities will be implemented.
5.2.2 The foregoing right excludes provisions that determine the Parties’ primary contractual obligations. They will not be changed in the manner described in this section.
5.2.3 Vorwerk will notify the User in text form (e.g. per email) of the modified terms before they will enter into force. Vorwerk will also explicitly inform the User of new provisions as well as of the planned date for the new terms to enter into force.
5.2.4 At the same time, Vorwerk will grant the User an adequate, at least six-week period to terminate the agreements that are based on these Terms of Use without notice period, in case that the User does not agree with the modified Terms of Use. In case of such extraordinary termination of the Cookidoo® Subscription, fees that have already been paid for the remaining term will be reimbursed. If the User does not terminate the agreement within the aforementioned period, the modified terms shall apply as of the planned date specified in the notification email pursuant to Section 5.02.03 above.
5.2.5 The termination shall be made in writing or in text form (e.g. via email to service@thermomix.us). Upon notification of the modified Terms of Use, Vorwerk will inform the User about the termination right, the applicable termination period and the significance of remaining silent.
5.3.1 These Terms of Use shall be governed by the laws of the State of California without regard to its conflict of laws provisions and the parties agree to the exclusive jurisdiction of the state and federal courts in Los Angeles County. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
The User acknowledge that these Terms of Use are a contract between The User and Vorwerk, even though it is electronic and is not physically signed by The User and Vorwerk, and it governs The User’s use of the Services.
Certain portions of this Section are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act ("FAA"). The User and Vorwerk expressly agree and intend that this Section satisfy the "writing" requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement. For purposes of this Section, "Claims" means collectively, and without limitation, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys' fees, whether incurred pre-litigation, pre-trial, at trial, on appeal, or otherwise), damages of any kind whatsoever (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, non-asserted, fixed, conditional, or contingent) that arise from or relate to (i) the Services, including any and all contents, materials and software related thereto, and/or (ii) The User’s use of the Services.
If any Claim arises out of or relates to the Services, or these Terms of Use, other than as may be provided herein, then The User and Vorwerk agree to send notice to the other providing a reasonable description of the Claim, along with a proposed resolution of it. Vorwerk’s notice to The User will be sent based on the most recent contact information that The User provided Vorwerk. If no such information exists or if such information is not current, Vorwerk has no obligation under this Section. For a period of sixty (60) days from the date of receipt of notice from the other party, The User and Vorwerk will engage in a dialog to attempt to resolve the Claim, though nothing will require either The User or Vorwerk to resolve the Claim on terms with respect to which The User and Vorwerk, in each of the parties' sole discretion, are not satisfied.
If The User and Vorwerk cannot resolve a Claim, within sixty (60) days of the receipt of the notice, then The User agree that that any such Claim and all other disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Use, including, but not limited to any claim that all or any part of these Terms of Use is void or voidable, or whether a claim is subject to arbitration relating to The User’s use of the Services, will be resolved by binding arbitration, rather than in court. The FAA, not state law, shall govern the arbitrability of such disputes, including the class action waiver below. However, The User and Vorwerk agree that California state law or United States federal law shall apply to, and govern, as appropriate, any and all Claims or disputes arising between The User and Vorwerk regarding these Terms of Use, the Services, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to choice of law principles. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator must follow the terms of these Terms of Use as a court would. THIS SECTION, INCLUDING THE PROVISIONS ON BINDING ARBITRATION AND CLASS ACTION WAIVER, SHALL SURVIVE ANY TERMINATION OF THE USER’S ACCOUNT OR THE SERVICE.
To begin an arbitration proceeding, The User must send a letter requesting arbitration and describing The User’s claim to Vorwerk as stated herein. The arbitration will be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Payment of all filing, administration and arbitrator fees will be governed by JAMS's rules. The arbitration shall take place in Los Angeles, California or at such other venue (and pursuant to such procedures) as is mutually agreed upon. The User can obtain JAMS procedures, rules, and fee information as follows: JAMS: 800.352.5267 and https://www.jamsadr.com.
The User and Vorwerk will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Vorwerk to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Vorwerk will have the right to elect to pay the fees and costs and proceed to arbitration. Arbitration rules may permit Vorwerk to recover attorneys' fees. Vorwerk will not seek to recover attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
Notwithstanding the agreement to resolve all disputes through arbitration, The User or Vorwerk may bring suit in court to enjoin infringement or other misuse of intellectual property rights (including patents, copyrights, trademarks, trade secrets, and moral rights, but not including privacy rights). The User or Vorwerk may also seek relief in small claims court for Claims within the scope of that court's jurisdiction. In the event that the arbitration provisions above are found not to apply to The User or to a particular Claim, either as a result of The User’s decision to opt-out of the arbitration provisions or as a result of a decision by the arbitrator or a court order, The User agree that the venue for any such Claim or dispute is exclusively that of a state or federal court located in Los Angeles County, California. The User and Vorwerk agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such Claims or any other disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Use or The User’s use of the Services in the event that the arbitration provisions are found not to apply. In such a case, should Vorwerk prevail in litigation against The User to enforce its rights under these Terms of Use, Vorwerk shall be entitled to its costs, expenses, and reasonable attorneys' fees (whether incurred at or in preparation for trial, appeal or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which Vorwerk may be entitled.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF THE USER OR VORWERK WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN THE USER OR VORWERK MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH HEREIN) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED. "Commencing" means, as applicable: (i) by delivery of written notice as set forth herein; (ii) filing for arbitration with JAMS as set forth herein; or (iii) filing an action in state or federal court. This provision will not apply to any legal action taken by Vorwerk to seek an injunction or other equitable relief in connection with any losses (or potential losses) relating to the Services, intellectual property rights of Vorwerk, and/or Vorwerk's provision of the Services.
The User have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of The User’s decision to opt-out to: service@thermomix.us with the subject line "COMPANY ARBITRATION AND CLASS ACTION WAIVER OPT-OUT". The notice must be sent within thirty (30) days of The User’s first use of the Services, otherwise The User shall be bound to arbitrate any disputes in accordance with these Terms of Use providing for binding arbitration. If The User opt-out of these arbitration provisions, Vorwerk also will not be bound by them.
5.3.2 If any provision of these Terms of Use is held to be unenforceable for any reason, the Parties will replace the invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision. The remaining provisions of these Terms of Use shall not be affected.
These Terms of Use are the entire agreement between the parties on its subject matter and supersede all prior or contemporaneous agreements.
