PHO BOCA

Pho Boca LLC Terms of Use

Last updated: November 13, 2020

 

Pho Boca LLC and/or its affiliates (DBA “Pho Boca” or “Wok Boca”, “we” or “us”) operate as a restaurant with online ordering capabilities (“Pho Boca”) located at www.phoboca.com from which you may purchase products and services (“Pho Boca”).

 

These Terms of Use apply to the content and functionality of the Pho Boca, and to the Pho Boca Products. These Terms of Use do not apply to products or services that we make available pursuant to different terms, such as our payment processing services, which are governed by the Pho Boca Services Agreement.

 

1. Information that you provide to us

You may give us information about yourself when you visit the Pho Boca. Our privacy policy explains our practices with respect to that information. We may need to send you email and text messages in order to, for example, verify your identity or provide you with important information. You authorize us to send those messages when you visit the Pho Boca and provide your contact details. Standard text or data charges may apply to text messages. Where offered, you may disable text message notifications by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important security controls and may increase the risk of loss to your business.

 

2. Pho Boca IP

As between you and Pho Boca, Pho Boca and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the Pho Boca (collectively, “Pho Boca IP”). Pho Boca IP is protected by copyright, trade secret, patent, and other intellectual property laws, and all rights in Pho Boca IP not expressly granted to you in these Terms of Use are reserved.

 

You may choose to or we may invite you to submit comments or ideas about improvements to the Pho Boca or our products or services (“Ideas”). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that Pho Boca has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.

 

3. Access to Pho Boca

Pho Boca grants you a limited, revocable, non-exclusive, non-transferable license to access the Pho Boca. This license does not include a right to use any of the content and information, including product listings. Our usage agreement sets out the terms and conditions that apply to your use of our logos. Your permissions and/or licenses are automatically terminated by any unauthorized use.

 

4. Products, Content and Specifications.

Details of the products and services available for purchase in the Pho Boca (“Pho Boca Products”) are set out in the Pho Boca. All features, content, specifications, products and prices of products and services described or depicted in this Pho Boca are subject to change at any time without notice. Unless expressly noted, all weights, measures and similar descriptions are approximate and are provided for convenience purposes only. Packaging may vary from that shown, and the appearance of a product in reality may differ from its appearance to you on the Pho Boca due to the limitations of the systems that you use to access the Pho Boca. The inclusion of any products or services in the Pho Boca at a particular time does not imply or warrant that these products or services will be available at any time. Occasionally, the manufacture or distribution of a certain product or service may be delayed for a number of reasons. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. By placing an order, you represent that the products ordered will be used only in a lawful manner.

 

5. Subscriptions

a. Subscription terms. We may offer you the ability to purchase subscriptions via the Pho Boca. Terms specific to a subscription will be disclosed to you at or prior to the time at which you purchase the subscription, and by purchasing the subscription you are agreeing to those terms.

 

b. Free trials and promotional periods. If a subscription commences with a free trial or a promotional period, you will have the right to cancel the subscription prior to the end of the trial or period. If we do not provide you with an online cancellation mechanism, then you may exercise this cancellation right by contacting us. We will email you prior to the end of the free trial or promotional period to remind you that the trial or period is coming to an end, and to give you an opportunity to cancel before the commencement of the paid period. If you do not cancel, we will bill you at the end of the free trial or promotional period, and your subsequent cancellation rights will be in accordance with the terms specific to the subscription.

c. Cancellation. Your cancellation rights, and the mechanism via which you may notify us of your decision to cancel, will be disclosed to you at or prior to the time at which you purchase a subscription.

 

6. Your account

We may require that you create an account to access the Pho Boca, including to make purchases. If we do so, you must provide accurate information about yourself when you create an account and ensure that you update us if that information changes. You must ensure that your login details remain confidential. You are responsible for any activity, including any purchases made, under your account. We reserve the right to terminate your account at any time and for any reason.

 

7. Shipping and returns

Pho Boca LLC is not liable for delivery and returns since it does not relate or apply to us as we operate as a restaurant.

 

8. Sanctions and export policy

You may not use the Pho Boca or purchase any Pho Boca product in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). We do not claim, and we cannot guarantee that the Pho Boca or any Pho Boca Product is or will be appropriate or available for any location or jurisdiction, comply with the laws of any location or jurisdiction, or comply with laws governing export, import, or foreign use.

 

9. No warranties

We provide the Pho Boca, Pho Boca IP and Pho Boca Products “as is” and “as available”, without any express, implied, or statutory warranties of title, merchantability, fitness for a particular purpose, noninfringement, or any other type of condition, warranty or guarantee. No data, documentation or any other information provided by Pho Boca or obtained by you from or through the Pho Boca – whether from Pho Boca or another entity, and whether oral or written – creates or implies any warranty from Pho Boca to you.

 

Pho Boca disclaims any knowledge of, and does not guarantee: (a) the accuracy, reliability, or correctness of any data provided through the Pho Boca; (b) that the Pho Boca Products will meet your specific needs or requirements; (c) that the Pho Boca will be available at any particular time or location, or will function in an uninterrupted manner or be secure; (d) that Pho Boca will correct any defects or errors in the Pho Boca; or (e) that the Pho Boca is free of viruses or other harmful code. Use of data, products or services that you access, purchase or download through the Pho Boca is done at your own risk – you are solely responsible for any damage to your property, loss of data, or any other loss that results from such access, purchase or download.

 

Nothing in these Terms of Use operates to exclude, restrict or modify the application of any implied condition, warranty or guarantee, or the exercise of any right or remedy, or the imposition of any liability under law to the extent that doing so would: (a) contravene that law; or (b) cause any term of this agreement to be void.

 

10. Limitation of liability

Under no circumstances will Pho Boca be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the Pho Boca or for the unavailability of the Pho Boca, or for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to these Terms of Use or your use of the Pho Boca, even if such damages are foreseeable, and whether or not you or the Pho Boca has been advised of the possibility of such damages. Pho Boca is not liable, and denies responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorized access or use of the Pho Boca or your failure to use or implement anti-fraud measures, security controls, or any other data security measure. Pho Boca further denies responsibility for all liability and damages to you or others caused by (a) your access or use of the Pho Boca inconsistent with our instructions; (b) any unauthorized access of servers, infrastructure, or data used in connection with the Pho Boca; (c) any bugs, viruses, or other harmful code that may be transmitted to or through the Pho Boca; (d) any errors, inaccuracies, omissions, or losses in or to any data provided to us; (e) third-party content provided by you; or (f) the defamatory, offensive, or illegal conduct of others.

 

You agree to limit any additional liability not disclaimed or denied by Pho Boca in relation to the Pho Boca, Pho Boca IP, and Pho Boca Products, to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the greater of the amounts paid by you to Pho Boca during the three-month period immediately preceding the event that gave rise to your claim for damages, and USD $20.

These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.

 

11. Disputes

a. Binding Arbitration: In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of these Terms of Use, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from these Terms of Use, but specifically excluding any dispute principally related to either party’s intellectual property. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules. The Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply for cases in which no disclosed claim or counterclaim exceeds $75,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs). Where no party’s claim exceeds $25,000 (exclusive of interest, attorneys’ fees and arbitration fees and costs), and in other cases in which the parties agree, Section E-6 of the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules will apply. The arbitrator will apply the substantive law of the State of Florida, exclusive of its conflict or choice of law rules.

 

Either party may commence arbitration by providing to the American Arbitration Association and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.

 

b. Service of Process: Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters, registered address, or primary address (for individuals or sole proprietors). Nothing in these Terms of Use will affect the right of any party to serve process in any other manner permitted by law.

 

c. Class Waiver: To the fullest extent permitted by law, each of the parties agrees that any dispute arising out of or in connection with these Terms of Use, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to these Terms of Use or any of the transactions contemplated between the parties.

 

d. Provision of an Award: Subject to the limitations of liability identified in these Terms of Use, the appointed arbitrators may award monetary damages and any other remedies allowed by the laws of the State of Florida. In making a determination, the arbitrator will not have the authority to modify any term or provision of this Agreement. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed in or enforced by a state or federal court located in Tallahassee, Florida. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review.

 

e. Fees: Each party will advance one-half of the fees and expenses of the arbitrators, the costs of the attendance of the arbitration reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to these Terms of Use, the arbitrators will award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and legal fees awards will be offset.

 

f. Confidentiality: The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.

 

g. Conflict of Rules: In the case of a conflict between the provisions of this Section 11 and the rules governing arbitration identified in Section 11.a, the provisions of this Section 11 will prevail. If any provision of these Terms of Use to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by law and all the other provisions will remain valid and enforceable.

 

12. Applicable law

By using the Pho Boca, you agree that the laws of the state of Florida, USA, without regard to principles of conflict of laws, will govern these Terms of Use and any dispute of any sort that might arise between you and Pho Boca.

 

13. Modification and severability

We have the right to change or add to the terms of these Terms of Use at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Pho Boca by posting such changes on our website or any other website we maintain or own. You can access a copy of the current version of these Terms of Use on our website at any time. You can find out when these Terms of Use were last changed by checking the “Last updated” date at the top of the page.

 

14. Our address

Pho Boca, Inc.
9181 Glades Road, Suite 105

Boca Raton, FL 33434
www.phoboca.com

 

Re-use of these Terms of Use

We would like to thank and give credit to Stripe Inc. for the free to use these Terms of Use as inspiration for our website terms and conditions under the Creative Commons Attribution 4.0 International License.