Terms

Terms

 

Last modified: April 20, 2020

 

U.S. Terms of Use

1.Contractual Relationship

These Terms of Use (“Terms”) govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services (the “Services,” as more fully defined below in Section 2) made available in the United States and its territories and possessions by Eatingin, LLC, a Delaware limited liability company dba eatn.in and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “Eatnin”).  PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND EATNIN. 

By accessing or using the Services, you confirm your agreement to be bound by these Terms.  If you do not agree to these Terms, you may not access or use the Services.  These Terms expressly supersede prior agreements or arrangements with you.   Eatnin may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH EATNIN ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.  BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

Supplemental terms may apply to certain Services, such as policies for a particular event, program, activity or promotion, and such supplemental terms will be disclosed to you in separate region-specific disclosures (e.g., a particular city webpage on eatn.in) or in connection with the applicable Service(s).   Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s).  Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Eatnin may amend the Terms from time to time.  Amendments will be effective upon Eatnin’s posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s).  Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended.   If Eatnin changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing Eatnin written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above.  This written notice must be provided by email from the email address associated with your Account to: support@eatn.in.  In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms.  By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).

 

Eatnin’s collection and use of personal information in connection with the Services is described in Eatnin’s Privacy Statements located at https://eatn.in/privacy

2. The Services

The Services comprise mobile applications and related services (each, an “Application”), which enable users to arrange and schedule transportation, logistics and/or delivery services and/or to purchase certain goods, including with third-party providers of such services and goods under agreement with Eatnin or certain of Eatnin’s affiliates (“Third-Party Providers”).  Unless otherwise agreed by Eatnin in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use.  YOU ACKNOWLEDGE THAT YOUR ABILITY TO OBTAIN DELIVERY SERVICES THROUGH THE USE OF THE SERVICES DOES NOT ESTABLISH EATNIN AS A PROVIDER OF DELIVERY SERVICES OR AS A TRANSPORTATION CARRIER.

License.

Subject to your compliance with these Terms, Eatnin grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use.  Any rights not expressly granted herein are reserved by Eatnin.

Restrictions.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Eatnin; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

Third- Party Services and Content.

The Services may be made available or accessed in connection with third-party services and content (including advertising) that Eatnin does not control.  You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content.  Eatnin does not endorse such third-party services and content and in no event shall Eatnin be responsible or liable for any products or services of such third-party providers.  Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to this contract if you access the Services using Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively.  These third-party beneficiaries are not parties to this contract and are not responsible for the provision or support of the Services in any manner.  Your access to the Services using these devices is subject to terms set forth in the applicable third-party beneficiary’s terms of service.

Ownership.

The Services and all rights therein are and shall remain Eatnin’s property.  Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Eatnin’s company names, logos, product and service names, trademarks or services marks or those of Eatnin’s licensors.

3. Access and Use of the Services

User Accounts.

In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”).  You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account, unless a specific Service permits otherwise.  Account registration requires you to submit to Eatnin certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method supported by Eatnin.  You agree to maintain accurate, complete, and up-to-date information in your Account.  Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Services.  You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times.  Unless otherwise permitted by Eatnin in writing, you may only possess one Account.

User Requirements and Conduct.

The Service is not available for use by persons under the age of 18.  You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation or logistics services from Third-Party Providers unless they are accompanied by you.  You may not assign or otherwise transfer your Account to any other person or entity.  You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials).  You may not in your access or use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third-Party Provider or any other party.  In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity or other method of identity verification.

Text Messaging and Telephone Calls.

 

You agree that Eatnin may contact you by telephone or text messages (including by an automatic telephone dialing system) at any of the phone numbers provided by you or on your behalf in connection with an Eatnin account, including for marketing purposes.  You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services.  You also understand that you may opt out of receiving text messages from Eatnin at any time by contacting support@eatn.in.  If you do not choose to opt out, Eatnin may contact you as outlined in its User Privacy Statement, located at https://eatn.in/privacy

 

User Provided Content.

Eatnin may, in Eatnin’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Eatnin through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”).  Any User Content provided by you remains your property.  However, by providing User Content to Eatnin, you grant Eatnin a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Eatnin’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Eatnin the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Eatnin’s use of the User Content as permitted herein will infringe, misappropriate or violate a third-party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Eatnin in its sole discretion, whether or not such material may be protected by law.  Eatnin may, but shall not be obligated to, review, monitor, or remove User Content, at Eatnin’s sole discretion and at any time and for any reason, without notice to you.

Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Services.  Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from your device.  You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto.  Eatnin does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices.  In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

4. Payment

You understand that use of the Services may result in charges to you for the services or goods you receive (“Charges”).  Eatnin will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services.  Charges will be inclusive of applicable taxes where required by law. 

All Charges and payments will be enabled by Eatnin using the preferred payment method designated in your Account, after which you will receive a receipt by email.  If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Eatnin may use a secondary payment method in your Account, if available.  Charges paid by you are final and non-refundable, unless otherwise determined by Eatnin.

In certain cases, with respect to Third-Party Providers, Charges you incur will be owed directly to Third-Party Providers, and Eatnin will collect payment of those charges from you, on the Third-Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third-Party Provider.  In such cases, you retain the right to request lower Charges from a Third-Party Provider for services or goods received by you from such Third-Party Provider at the time you receive such services or goods, and Charges you incur will be owed to the Third-Party Provider.  Eatnin will respond accordingly to any request from a Third-Party Provider to modify the Charges for a particular service or good.  This payment structure is intended to fully compensate a Third-Party Provider, if applicable, for the services or goods obtained in connection with your use of the Services.  In all other cases, Charges you incur will be owed and paid directly to Eatnin or its affiliates, where Eatnin is solely liable for any obligations to Third-Party Providers.  In such cases, you retain the right to request lower Charges from Eatnin for services or goods received by you from a Third-Party Provider at the time you receive such services or goods, and Eatnin will respond accordingly to any request from you to modify the Charges for a particular service or good.  Any representation by Eatnin (on Eatnin’s website, in the Application, or in Eatnin’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that Eatnin provides any additional amounts, beyond those described above, to a Third-Party Provider you may use.  You understand and agree that, while you are free to provide additional payment as a gratuity to any Third-Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so.  Gratuities are voluntary.

5. Disclaimers; Limitation of Liability; Indemnity.

DISCLAIMER.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EATNIN DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  IN ADDITION, EATNIN MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  EATNIN DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD-PARTY PROVIDERS.  YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY.

EATNIN SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF EATNIN, EVEN IF EATNIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EATNIN SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD-PARTY PROVIDER, EVEN IF EATNIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EATNIN SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND EATNIN’S REASONABLE CONTROL. 

THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE GOODS OR LOGISTICS SERVICES WITH THIRD-PARTY PROVIDERS, BUT YOU AGREE THAT EATNIN HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD-PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.   BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EATNIN’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.   THIS PROVISION SHALL HAVE NO EFFECT ON EATNIN’S CHOICE OF LAW PROVISION SET FORTH BELOW.

Indemnity.

You agree to indemnify and hold Eatnin and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Eatnin’s use of your User Content; or (iv) your violation of the rights of any third- party, including Third-Party Providers.

6. Arbitration Agreement

By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Eatnin on an individual basis in arbitration, as set forth in this Arbitration Agreement.  This will preclude you from bringing any class, collective, or representative action against Eatnin and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Eatnin by someone else.

 

Agreement to Binding Arbitration Between You and Eatnin.

You and Eatnin agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Eatnin, and not in a court of law.  Notwithstanding the foregoing, where you allege claims of sexual assault or sexual harassment occurring in connection with your use of the Services, you may elect to bring those claims in a court of competent jurisdiction instead of arbitration.  Eatnin agrees to honor your election of forum with respect to your individual sexual assault or sexual harassment claim but in so doing does not waive the enforceability of this Arbitration Agreement as to any other provision (including, but not limited to, the waivers provided in the following paragraph, which will continue to apply in court and arbitration), controversy, claim or dispute.

You acknowledge and agree that you and Eatnin are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.  Unless both you and Eatnin otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.  However, you and Eatnin each retain the right to bring an individual action in small claims court and 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 party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

Rules and Governing Law.

 

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement.  The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable.  The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

The parties agree and acknowledge that this Agreement is governed by Arizona law and any dispute hereunder shall be resolved under the laws of the state of Arizona.

Process.

 

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules.  (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879).  The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of Arizona and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators.  If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

 

Location and Procedure.

Unless you and Eatnin otherwise agree, the arbitration will be conducted in Maricopa County, Arizona.  If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Eatnin submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary.  If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules.  Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision.

The Arbitrator will render an award within the time frame specified in the AAA Rules.  Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so.  The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.  An Arbitrator’s decision shall be final and binding on all parties.  An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.  If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.  Eatnin will not seek, and hereby waives all rights Eatnin may have under applicable law to recover attorneys’ fees and expenses if Eatnin prevails in arbitration.

Fees.

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.  However, if your claim for damages does not exceed $75,000, Eatnin will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes.

 

Notwithstanding the provisions in Section 1 above, regarding consent to be bound by amendments to these Terms, if Eatnin changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing Eatnin written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Effective” date above. This written notice must be provided by email from the email address associated with your Account to: support@eatn.in.  In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement.  By rejecting changes, you are agreeing that you will arbitrate any dispute between you and Uber in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).

 

Severability and Survival.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

7. Other Provisions

Choice of Law.

These Terms are governed by and construed in accordance with the laws of the State of Arizona, U.S.A.

Claims of Copyright Infringement.

 

Claims of copyright infringement should be sent to Eatnin’s designated agent.  Please visit Eatnin’s web page at https://eatn.in for the designated address and additional information.

 

Notice.

 

Eatnin may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account.  Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone).  You may give notice to Eatnin, with such notice deemed given when received by Eatnin, at any time by first class mail or pre-paid post to eatn.in – 645 E Missouri Ave, #400, Phoenix, AZ 85012. 

 

General.

You may not assign these Terms without Eatnin’s prior written approval.  Eatnin may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Eatnin’s equity, business or assets; or (iii) a successor by merger.  Any purported assignment in violation of this section shall be void.  No joint venture, partnership, employment, or agency relationship exists between you, Eatnin or any Third-Party Provider as a result of this Agreement or use of the Services.  If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.  Eatnin’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Eatnin in writing.  This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.