Sarku Japan – Terms and condition

Terms of Use

Last Updated and Effective: July 17, 2020

THIS WEBSITE AND SARKU JAPAN’S MOBILE APPLICATIONS ARE OWNED AND OPERATED BY SJ EUS FOOD INC. PLEASE READ THESE TERMS OF USE, OUR PRIVACY POLICY, AND ANY OTHER APPLICABLE TERMS RELATING TO PROGRAMS WE OFFER, EXPRESSLY INCORPORATED HEREIN BY REFERENCE AS THE “TERMS”) FULLY AND CAREFULLY BEFORE USING WWW.SARKUJAPAN.COM AND/OR SARKU JAPAN’S MOBILE APPLCATIONS AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND OBLIGATIONS, INCLUDING LIMITATIONS OF YOUR RIGHTS AND EXCLUSIONS THAT MAY APPLY TO YOU. THESE TERMS SET FORTH LEGALLY BINDING TERMS AND CONDITIONS FOR USE OF THE SITE (AS DEFINED BELOW). IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE DO NOT USE THE SITE.

 

ACCEPTANCE OF TERMS

By using the Site, you agree to these Terms and any amendments hereto that may be published from time to time on the Site, each of which is incorporated by reference.

BY USING THE SITE, YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND INSTEAD AGREE TO HAVE ALL DISPUTES DECIDED BY AN ARBITRATOR. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL TO SETTLE DISPUTES RELATING TO YOUR USE OF THE SITE, AS STATED FULLY IN THE “DISPUTE RESOLUTION” SECTION BELOW.

 

KEY TERMS

Sarku Japan refers to SJ EUS FOOD INC., all of our brands, including “Sarku Japan,” “Sarku Japan Sushi Bar,” “Sakkio Japan,” “Kato’s Cajun,” “Ming Tree,” and all its affiliated companies or entities, and is referred to herein as “Sarku Japan,” “we,” or “our.”

“Content” means logos, design, text, graphics, images, software, audio, video, works of authorship of any kind, and information and other materials that are posted, generated, provided, or otherwise available through or on the Site. We and our licensors exclusively own all right, title, and interest in and to the Content, including all associated intellectual property rights. You acknowledge that Content is protected by copyright, trademark, and other laws of the United States and foreign countries and that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights or notices incorporated in or accompanying Content on the Site.

“Site” means the website www.sarkujapan.com, including all subdomains and subparts, as well as our social media accounts on Facebook, Instagram, YouTube, Google, and Twitter, and other platforms and applications for mobile, tablet, and other smart devices and application programs.

“Terms” refers to the terms and conditions of these Terms of Use, along with our Privacy Policy.

“User” means any visitor to the Site, regardless of whether the visitor registers for the Site or purchases any services or products from the Site, and is referred to herein as “User” or “you.”

“User Content” refers to any photographs, comments, video clips, or other Content that Users, including you, may upload to the Site. Content includes, without limitation, User Content. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights a User may have to use and exploit their own User Content.

 

ELIGIBILITY TO USE THE SITE

By using the Site, you agree that you are at least thirteen (13) years of age. If you are between thirteen (13) and seventeen (17) years of age, you can only use the Site with the permission and involvement of your parent or guardian. As long as you comply with these Terms, you may view and use our Site for your personal, non-commercial purposes. No other use of the Site is authorized.

 

NOTICE REQUIRED BY CALIFORNIA LAW

Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice:

The name, address, and telephone number of the provider of this service is SJ EUS FOOD INC., c/o SARKU JAPAN, 7650 Birchmount Road, Markham, Ontario, CANADA L3R 6B9, 1-888-612-7551. Complaints regarding services or products, or requests to receive further information regarding use of this Site may be sent to the above address or to info@sarkujapan.com.

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 Boulevard, Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.

 

GOVERNING LAW

These Terms and any action or proceeding relating thereto will be governed by the laws of the State of New York. If any provision or part-provision of these Terms is declared invalid, unlawful, void, or for any reason unenforceable, it will be deemed severable and will not affect the validity and enforceability of the remaining provisions of these Terms, which will be enforced to the maximum extent permissible.

 

CHANGES TO TERMS OF USE

We reserve the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted on the Site. Each time you use the Site, you should review the current Terms. You can determine when these Terms were last revised by referring to the “LAST UPDATED” legend at the top of these Terms. Your continued use of the Site will constitute your acceptance of the then- current Terms; however, any material change to these Terms after your last usage of the Site will not be applied retroactively. Except for such material changes, the Terms that were in effect at the time any claim or dispute arose between you and Sarku Japan will be applied.

 

YOUR ACCOUNT

You may choose to register an account with Sarku Japan to access certain services. With respect to any such registration, we may refuse to grant you the username you request. Your username and password are for your personal use only. You are responsible for maintaining the confidentiality of your account and password and for restricting access to them, and you agree to accept responsibility for all activities that occur under your account or password. In addition to all other rights available to Sarku Japan, including those set forth in these Terms, we reserve the right, in our sole discretion, to terminate your account or your use of the Site, block or prevent future access to and use of the Site, refuse service to you, or cancel your product orders (i) if you violate any of these Terms; (ii) for any other reason; or (iii) for no reason. Upon any such termination, your right to use the Site will immediately cease.

 

PRIVACY POLICY

Users of the Site should refer to our Privacy Policy (as may be updated from time to time) for information about how we use and collect information, which may be accessed by clicking on the following link: https://sarkujapan.com/privacy-policy. You agree that we may collect, use, retain, and disclose your personal information to the extent permissible by law and as described in our Privacy Policy and that our Privacy Policy will govern our collection and use of your personal information to the fullest extent permitted by law.

 

INTERNATIONAL USERS

This Site is intended for customers’ use in the United States only. We make no claims concerning whether the Content may be downloaded, viewed, or appropriate for use outside of the United States. If you access our Site or use the mobile Application or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Please note that this Site is different from the website located at www.sarkujapan.co (which is not owned or managed by SJ EUS FOOD INC. or its affiliates), for use by customers in Colombia, and these Terms do not apply to that website.

 

RULES OF CONDUCT AND GENERAL PROHIBITIONS

You must only use this Site for lawful purposes, and you must not use it in any way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Site. You may not, without our written consent: (i) copy, reproduce, use, or otherwise deal with any Content on the Site; (ii) modify, distribute, or re-post any Content on the Site for any purpose; or (iii) use the Content of the Site for any commercial exploitation whatsoever.

In using the Site, you further agree not to do any of the following:

 

  • post, publish, submit, or otherwise transmit any Content that: (i) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy; (ii) is knowingly false, fraudulent, misleading, or deceptive; (iii) is defamatory, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violative of any law; or (iv) promotes illegal or harmful activities or substances;
  • disrupt or interfere with the security of, or otherwise abuse, the Site or any service, systems resource, account, server, or network connected to or accessible through the Site, or affiliated or linked websites;
  • disrupt or interfere with any other User’s enjoyment of the Site, or affiliated or linked websites;
  • post, publish, submit or otherwise transmit through or on the Site any viruses or other harmful, disruptive, or destructive files;
  • use, frame, or utilize framing techniques to enclose our trademark, logo, or other proprietary information (including, but not limited to, images found on the Site, Content, any text, or the layout/design of any page or form contained on a page) without our express written consent;
  • use meta tags or other “hidden text” utilizing our name, trademark, or product name without our express written consent;
  • deep link to the Site without our express written consent;
  • create or use a false identity on the Site, share your account information, or allow any person besides yourself to use your account to access the Site;
  • collect or store personal data about others;
  • attempt to obtain unauthorized access to the Site or portions of it that are restricted from general access; and
  • encourage or enable another User or individual to do any of the foregoing prohibited activities.

 

By accessing or using this Site you agree to comply with all applicable local, national, and international laws and regulations relating to your use of or activities on the Site. To the extent permissible by law, we will not be responsible or liable to any third party for the User Content or accuracy of any Content posted by you or any other User on the Site. We have the right to remove any User Content or posting you make on the Site if, in our sole discretion, such Content or posting does not comply with the standards set out in these Terms.

If you do not agree to these Terms, you do not have our consent to obtain information from or otherwise use the Site. Failure to use the Site in accordance with these Terms may subject you to civil or criminal penalties.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SITE, AND/OR DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS WHETHER OR NOT YOU HAVE CREATED AN ACCOUNT ON THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE. If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or legal entity to these Terms and, in such event, “you” or “your” will refer and apply to that company or other legal entity.

 

RIGHT TO USER CONTENT POSTED BY YOU

By making any User Content available to or through the Site, you will remain the owner of your User Content, but hereby grant Sarku Japan a non-exclusive, transferable, sub-licensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform, and distribute your User Content in connection with operating and providing services and products to you and/or other Users, and also in connection with advertising of our services and products. You also agree that your User Content will be treated as non-confidential and non-proprietary and will not be returned to you, except as otherwise described in the Privacy Policy.

In the event you upload any User Content to the Site, we have the right to use any and all such elements of the Content in connection with and/or as part of our business, including, but not limited to, in connection with or in any advertising in any and all media, product packaging, printed publications, presentations, promotional materials, events, and associated marketing materials, television and cinema commercials, videos, or on the Site in perpetuity throughout the world as we, in our sole discretion, see fit without further consent by, or payment to, you. By uploading User Content to the Site, you agree to grant Sarku Japan the right to use your copyright in such User Content. We also have all right, title, and interest in any and all results and proceeds from our use of the User Content to the extent permissible by law. We have the right to transfer our rights to use the User Content to any third party, including, but not limited to, any of our subsidiaries or affiliated companies.

We may alter, adopt, or edit the User Content and any further material created under these Terms, and market and exploit it entirely in our sole discretion. Upon request, you will furnish Sarku Japan with any and all documentation, substantiation, or releases necessary to verify your compliance with these provisions. We are not obligated to make use of any of your User Content or exercise any of the rights granted by these Terms.

You are responsible for all your User Content. You represent and warrant that you own all of your User Content or you have all rights necessary to grant Sarku Japan the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Site, nor any use of your User Content by Sarku Japan on or through the Site, will infringe, misappropriate, or violate a third party’s intellectual property rights, rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You may request that we delete your User Content according to the terms of our Privacy Policy by calling us at 1-888-612-7551 or emailing us at info@sarkujapan.com. Before we may fulfill a request to access or delete your information, we are required to verify your identity. We will ask you to verify your name, address, email address, telephone number, and/or other information we have collected about you. However, we may retain your Personal Data for an additional period as is permitted or required under applicable laws. Even if we delete your Personal Data, it may persist on backup or archival media for an additional period of time.

 

INDEMNIFICATION

You will defend, indemnify, and hold harmless Sarku Japan, our affiliates, and each of our and their respective officers, directors, employees, contractors, suppliers, representatives, and agents from any and all claims, demands, liabilities, damages, losses, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, that arise from or relate to: (i) your access to or use of the Site or Content; (ii) your User Content; (iii) violation of any applicable law that protects Sarku Japan or our legal rights or those of any third party that your actions have damaged; (iv) your violation of these Terms or any applicable law, including, but not limited to, infringement by you of any intellectual property rights owned by Sarku Japan or any third party; and (v) any and all activities that occur under or in connection with your account, username, and/or password. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Sarku Japan in asserting any available defenses. YOU AGREE TO BE RESPONSIBLE FOR ALL SUCH DAMAGES, CLAIMS, OR LOSSES TO THE FULLEST EXTENT PERMITTED BY LAW, EVEN IF THEY ARE CAUSED BY OUR ACTIVE OR PASSIVE NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.

 

MOBILE APPLICATION USERS

The following provisions apply to users of Sarku Japan’s mobile applications (each, an “Application”):

 

Users of the Apple Application

If you download and/or use our Application(s) for iPhone or iPad, these Terms incorporate by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula). For purposes of these Terms, the Application is considered the “Licensed Application” as defined in the LAEULA and we are considered the “Application Provider” as defined in the LAEULA. If any of these Terms conflict with the terms of the LAEULA, these Terms shall control.

 

Mobile Service, Internet and Service Fees

The use of the Application requires use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require Internet access, which must be obtained from your service provider; you are responsible for obtaining and paying for a suitable device and such additional services, including, without limitation, all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Application, including, without limitation, administrative messages, service announcements, diagnostic data reports, and Application updates from Sarku Japan, your mobile carrier, or third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Application. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Application, including, but not limited to, payment of all third party fees associated therewith, including fees for information sent to or through the Application.

The Application may not work with all devices or all mobile carriers. We make no representations that the Application will be compatible with or provided by all mobile carriers. In the event that fees are charged for the Application or other third party service providers charge a fee for the services or products they provide, you agree to pay such fees to the respective party in exchange for your continued use of such services or products. Some services may be subject to different or additional terms (including fees), which you will be required to agree to prior to your use of such services.

Some features of the Application make use of geolocation information, for example in the form of GPS signals and other information sent by your mobile device on which the Application is installed and activated. Certain features of the Application may not be available without utilizing this technology.

 

COPYRIGHTS AND TRADEMARKS

The Site, including all of the Content and organization, graphics, design, compilation, magnetic translation, digital conversion, software, services, and other matters related to same, is the sole and exclusive property of Sarku Japan and protected by applicable copyright, trademark, other proprietary rights, and other laws of the United States and foreign countries. Unless expressly stated otherwise, we retain other proprietary rights in all Content and services and products available through the Site.

Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, and or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without our prior written consent and permission of the respective copyright owner. You may not, without our express written permission or that of the respective copyright owner: (i) copy, upload, publish, post, submit, or transmit any materials on any computer network or broadcast or publications media; (ii) modify the materials; or (iii) remove or alter any copyright or other proprietary notices contained in the materials. You also may not: (i) sell, resell, or make commercial use of the Site, its Content, services, or products obtained through the Site; (ii) collect or use any product listings or descriptions; (iii) make derivative uses of the Site or its Content; or (iv) use any data mining, robots, or similar data gathering and extracting methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any of our patent, trademark, or copyright rights, or other proprietary rights of any third party.

Together with other logos and product names appearing on the Site, the following includes a partial list of our trademarks and/or registered trademarks in the United States and other countries: “SARKU JAPAN,” “SARKU JAPAN with Bento Box and Chopsticks design,” “SAKKIO JAPAN,” “SARKU JAPAN SUSHI BAR,” “KATO’S CAJUN,” “MING TREE,” “FRESH HAPPENS HERE,” and “石橋.” All other trademarks not owned by Sarku Japan that are made available by and through the Site are the property of their respective owners who may or may not be affiliated with, connected to, or sponsored by Sarku Japan. These and all of our other trademarks may not be copied, imitated, or used, in whole or in part, without our prior written permission or that of the rights holder. In addition, all page headers, custom graphics, button icons, and scripts are our service marks, trademarks, and/or trade dress, and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Any other names and brands on the Site may be claimed as the property of others.

 

INTELLECTUAL PROPERTY, COPYRIGHT, AND EXCLUSIVITY

Copyright in any manual, sales documentation, technical description, and other documents that may be supplied by Sarku Japan under or in connection with your purchase(s) and any and all intellectual property rights, title, and interest in the formulation or design of Sarku Japan’s services or products, or any part thereof, whether such formulation or design is registered or not, shall vest in Sarku Japan absolutely. Any data, patent, copyright, proprietary right, or confidentiality, know- how, trademark, or process with respect to Sarku Japan’s services or products is the proprietary information (“Proprietary Information”) of Sarku Japan and its third-party vendors (as the case may be). You agree that you shall not, without Sarku Japan’s prior written consent, use or disclose the Proprietary Information to any third-party for any reason other than that third-party’s personal use of Sarku Japan’s services or products. You also agree that you shall not use or provide Sarku Japan’s products to any third-party or other entity to reverse engineer or disassemble Sarku Japan’s products or any part thereof to create or derive any Sarku Japan or third-party intellectual property.

 

DMCA/COPYRIGHT POLICY

It is our policy to respect the copyright and intellectual property rights of others. We may remove content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, we may terminate access by Users who appear to infringe the intellectual property or other rights of others.

We comply with the Digital Millennium Copyright Act (“DMCA”). If you believe we or any User of the Site has infringed your copyright in any material way, please notify Sarku Japan, and provide the following:

 

  • an identification of the intellectual property right claimed to have been infringed;
  • an identification of the material you claim is infringing so that we may locate it on the Site;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the owner or its licensee, or the agent of either of the foregoing, or the law;
  • a statement by you that the above information in your notice is accurate and made under penalty of perjury; and
  • that you are authorized to act on behalf of the owner of the intellectual property interest involved.

 

Please direct inquiries regarding intellectual property infringement issues by email to info@sarkujapan.com, by phone at 1-888-621-7551, or by writing to 7650 Birchmount Road, Markham, Ontario, CANADA L3R 6B9 (Attention To: Legal Department).

It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any potentially infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove the applicable material along with that of the alleged infringer pending resolution of the matter. We have an absolute right to remove any such User Content or other material from the Site in our sole discretion at any time.

 

LINKS TO THIRD PARTY WEBSITES

The Site may contain links to third party websites or services and advertisements for third parties (collectively, the “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under our control and we are not responsible for any Thirty Party Sites & Ads. We provide these Third Party Sites & Ads only as a convenience and are not responsible for the content, services, or products on or available from those Third Party Sites & Ads. You acknowledge sole responsibility for and assume all risk arising from your use of Third Party Sites & Ads.

The inclusion of a hyperlink to Third Party Sites & Ads does not imply affiliation, endorsement, or adoption by Sarku Japan of the Third Party Sites & Ads or any services, products, or information contained therein.

 

CUSTOMERS SATISFACTION POLICY

We are confident you will enjoy the services and products you purchase on the Site. If you are not satisfied with your order or experience, please submit your comment by contacting Sarku Japan at 1-888-621-7551 or by email at info@sarkujapan.com.

 

PRODUCT DESCRIPTIONS

We have taken reasonable precautions to ensure that all menu descriptions, prices, and other Content on the Site are correct and fairly described. However, we cannot guarantee that Site content does not contain inadvertent mistakes or errors. By placing an order on this Site, you are making an offer to Sarku Japan. Our acknowledgment of an order means that your order request has been received; it does not mean that your order has been accepted or prepared or that the price or availability of a menu item has been confirmed. We reserve the right to not accept the offer if there has been a material error in the description of the product, or if the price advertised is incorrect. All prices are displayed in United States Dollars unless expressly indicated otherwise.

 

ONLINE PURCHASES

If you wish to purchase any product or service made available through the Site (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and pick- up or delivery information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant Sarku Japan the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.

All descriptions, images, references, features, Content, specifications, services, products, and prices of services and products described or depicted on the Site are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any services or products on the Site does not imply or warrant that these services or products will be available.

We reserve the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any product or service; (ii) bar any User from making or completing any or all Transaction(s); and (iii) refuse to provide any User with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect at the time of the Transaction, including, without limitation, all service charges and delivery fees. In addition, you remain responsible for any taxes that may be applicable to your Transactions.

ORDER AND PAYMENT INFORMATION

If you use the Site or other means to purchase services or products, payment must be received by Sarku Japan prior to our acceptance of an order, unless otherwise agreed to by us in advance. All of our products are subject to sales tax, which will be applied to your order total. We may need to verify information you provide before we accept an order, and may cancel or limit an order any time after it has been placed. If payment has already been made and your order is cancelled or limited, we will refund you any payment made for the product that will not be provided due to cancellation or limitation of an order in the same tender as the original purchase. We expressly condition acceptance of your order on your agreement to these Terms.

We will add applicable service charges or delivery fees to your charges, as stated in your order. We reserve the right to reject orders where the stated delivery address is outside of our delivery area.

 

DISCLAIMER OF WARRANTIES

OUR SERVICES, PRODUCTS, AND CONTENT ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the services or products available on the Site will meet your requirements or be available on an uninterrupted, secure, or error-free basis. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, INCLUDING ANY SERVICES OR PRODUCTS PROVIDED TO YOU.

IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY WARRANTIES RELATING TO OUR SERVICES, PRODUCTS, OR CONTENT, THESE TERMS, AND YOUR USE OF THE SITE, INCLUDING, BUT NOT LIMITED TO, FROM YOUR PURCHASE OF ANY SERVICES OR PRODUCTS VIA THE SITE, OR FROM THE USE OF OR INABILITY TO USE THE SITE, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR SERVICES OR PRODUCTS PURCHASED VIA THE SITE IN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO YOUR CLAIM OF LIABILITY. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SARKU JAPAN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

LIMITATIONS OF LIABILITY

TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT NEITHER SARKU JAPAN, OUR AFFILIATES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING SERVICES, PRODUCTS, OR CONTENT ON THE SITE WILL BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY – EVEN OUR OWN ACTIVE OR PASSIVE NEGLIGENCE – ARISING IN CONNECTION WITH: (I) THE SITE; (II) THE USE OR INABILITY TO USE THE SITE; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE; (IV) THE PURCHASE OR USE OF ANY SERVICES OR PRODUCTS THROUGH THE SITE OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OF DATA OR OTHER INFORMATION THAT IS SENT TO OR RECEIVED BY THE SITE; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THESE TERMS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF WE OR OUR REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SARKU JAPAN. ACCESS TO THE SITE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST TWELVE (12) MONTHS TO SARKU JAPAN FOR ANY SERVICES OR PRODUCTS SUPPLIED BY US THROUGH YOUR USE OF THE SITE OR OTHERWISE.

WE WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, CONTAGION, FIRE, FLOOD, OR WAR.

The terms of this section survive any termination of these Terms.

 

TERMINATION

Notwithstanding anything to the contrary in these Terms, we reserve the right, without notice and in our sole discretion, for any reason or no reason, to terminate your ability to use the Site and to block and prevent future access to and use of the Site. You agree that we will not be liable for any termination of your use of or access to the Site.

 

NO THIRD PARTY BENEFICIARIES

We and you are the only parties entitled to enforce these Terms. These Terms do not and are not intended to confer any rights or remedies upon any person other than you and Sarku Japan. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions relating to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms. You also agree that if we assign, transfer, or sub-contract any of our rights or obligations under these Terms to any third party in writing, such third party may enforce the Terms that are assigned, transferred, or sub-contracted.

 

DISPUTE RESOLUTION

AGREEMENT TO ARBITRATE AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS

WE EACH AGREE THAT ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO OUR SERVICES, PRODUCTS, THESE TERMS, INCLUDING OUR PRIVACY POLICY AND COOKIE POLICY, OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, OR VALIDITY THEREOF OR THE USE OF THE SERVICES OR CONTENT AVAILABLE ON OR THROUGH THE SITE (COLLECTIVELY, “DISPUTES”) WILL BE SETTLED BY CONFIDENTIAL BINDING ARBITRATION, EXCEPT THAT each party retains the right to: (i) bring an individual action in small claims court; and (ii) 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, trademark, trade secrets, patents, or other intellectual property rights (the action described in the foregoing clause (ii) an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in New York, New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

You acknowledge and agree that both you and Sarku Japan are waiving the right to a trial by jury or to participate as a plaintiff or class representative or class member in any purported class action or representative proceeding. Further, unless we both otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive termination of these Terms.

We both agree that these Terms should be interpreted and enforced under the Federal Arbitration Act (9 U.S.C. §§ 1, et seq.) because they memorialize a transaction in interstate commerce. This section will survive termination of these Terms.

 

ARBITRATION RULES

The arbitration will be administered and governed by the Comprehensive or Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS), whichever is appropriate and in effect at the time the arbitration is initiated (the “JAMS Procedures”), which are available at http://www.jamsadr.com or by calling 1-800-352-5267.

The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only.

 

DISPUTE NOTICE AND ARBITRATION PROCESS

Prior to initiating an arbitration proceeding, you must first send Sarku Japan a written statement setting forth your name, address, and telephone number, the facts giving rise to the dispute, and the relief requested (“Dispute Statement”). The Dispute Statement to Sarku Japan must be emailed to info@sarkujapan.com. If we are unable to resolve your claim within sixty (60) days, then either party that desires to initiate an arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Procedures.

An arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes relating to Sarku Japan’s services and products, as well as all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, the arbitrability of any claim, as well as any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is an IP Protection Action.

 

ARBITRATION LOCATION AND PROCEDURE

Unless the parties otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then: (i) the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary; and (ii) if there is a hearing, you may choose whether to participate in person or by telephone. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Procedures. Subject to the JAMS Procedures, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of arbitration.

 

ARBITRATOR’S DECISION

The arbitrator’s decision will include the essential findings and conclusions of law upon which the arbitrator based the award. Judgment on the arbitration may be entered in any court having competent jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Disclaimer of Warranties,” and “Limitations of Liability” sections above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory and injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Sarku Japan will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

 

FEES

We will pay or (if applicable) reimburse you for all JAMS filing, administration, and arbitration fees for any arbitration commenced by you or Sarku Japan pursuant to the terms of this section.

 

TIME LIMIT FOR RESOLVING DISPUTES

The parties agree that any cause of action either may have with respect to the Site or our services, products, and Content must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. Many states’ laws set statutes of limitations that are longer than one (1) year. If you live in a state that has statutes of limitations that are longer than one (1) year, by agreeing to these Terms, you are agreeing to shorten the time you have to bring a claim. This means that if you wait longer than one (1) year to initiate arbitration under this section, you will lose some or all rights you may have to any recovery, including the right to recover damages, in connection with a Dispute.

The terms of this Dispute Resolution section survive any termination of these Terms.

 

RIGHT TO OPT-OUT OR REJECT FUTURE CHANGES TO DISPUTE RESOLUTION SECTION

You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section by sending a written letter to Sarku Japan, at 7650 Birchmount Road, Markham, Ontario, CANADA L3R 6B9 (Attention To: Legal Department) , or by email to info@sarkujapan.com, within thirty (30) days of your first visit to and use of the Site that specifies your: (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure or waiver of class and representative proceedings specified in this section. In the event you opt-out consistent with the procedure set forth above, all other terms and conditions of these Terms will continue to apply. If you do not so opt-out, then the terms of this “Dispute Resolution” section will apply.

Notwithstanding the provisions of “Changes to Terms of Use” section above, if Sarku Japan changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted subsequent changes to the Terms), you may reject any such change by sending Sarku Japan written notice (including by email to info@sarkujapan.com) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Sarku Japan in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

 

GENERAL TERMS

These Terms constitute the entire and exclusive understanding and agreement between Sarku Japan and you regarding the Site, Content, services, and products that may be provided on the Site, and these Terms supersede and replace any and all prior oral or written understandings or agreements between you and Sarku Japan regarding the Content, services, or products provided on the Site. If, for any reason, any provision of these Terms is deemed to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.

Any notices or other communications provided by Sarku Japan under these Terms, including those regarding modifications to these Terms, will be given: (i) by Sarku Japan via email; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date we transmit such notice.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Sarku Japan. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between you and Sarku Japan, and you do not have any authority to create any obligation on our behalf.

 

CONTACT INFORMATION

If you have any questions about these Terms, please contact Sarku Japan at: 7650 Birchmount Road, Markham, Ontario, CANADA L3R 6B9 (Attention To: Legal Department) or info@sarkujapan.com.