Terms and Conditions

1.The Agreement

1.1. These Terms and Conditions (the “Terms and Conditions”) of Biteaway GmbH, a Swiss company with limited liability with its place of business in Zug, Switzerland (“biteaway”, “we”, “our”, or “us”) form together with the Confirmed Order(s) (as defined below), if any, our Privacy Policy and our Terms of Use of the Website the “Agreement”.

1.2. The Agreement is entered into by and between biteaway on one part and the individual and/or legal entity designated as “Customer” in the registration process according to Section 2 below on the other part (the “Customer”). biteaway and the Customer are sometimes referred to in the Agreement as a “Party” or collectively as “Parties”.

1.3. If the Customer is an individual, he represents that it is 18 years of age or older. If the Customer is under the age of 18, he may purchase products from us under the Agreement (the “Products”) only under the supervision of a parent or legal guardian who has agreed to be bound by the Agreement.

1.4. The Agreement constitutes the entire legal relationship between the Parties with respect to the website www.biteaway.com, other websites and mobile applications with similar contents provided by biteaway (together the „Platform“) as well as any rights and obligations, acts and omissions of the Parties connected therewith. The services provided by us on the Platform are sometimes referred to in the Agreement as the “Services”.

1.5. These Terms and Conditions, our Privacy Policy and our Terms of Use of the Website are available on our Platform. The Customer has the possibility to download a PDF-file of each of these documents which can be printed out and saved by the Customer at any time.

1.6. In case of discrepancy between provisions of the Agreement, the following applies: (i) the Privacy Policy prevails over the Confirmed Order(s); (ii) the Confirmed Order(s) prevail over the Terms and Conditions; and (iii) the Terms and Conditions prevail over the Terms of Use of the Website.

1.7. In the Agreement, unless the context requires otherwise, (i) the headings are inserted for ease of reference only and shall not affect the construction or interpretation of the Agreement; (ii) references to one gender include all genders; (iii) words in the singular shall include the plural and vice versa; and (iv) any reference in these Terms and Conditions to a “Section” shall be deemed to be a reference to a Section of these Terms and Conditions.

1.8. Any information or promises on the Platform are provided for information purposes only and are not binding to us unless explicitly provided otherwise in the Agreement with regard to a specific case.

2.The Account of the Customer

2.1. The Customer may choose to create an account (the “Account”) on our Platform. The registration process is described on the Platform. The Customer may not be able to access or use certain features of the Platform if he does not have an Account

2.2. We can reject the Customer’s request to create an Account in our free discretion.

2.3. The individual that is registering for a legal entity personally represents and warrants that (i) he has all rights, power and authority to enter into the Agreement for the legal entity; and (ii) he is entitled to do so.

2.4. The Customer represents and warrants that (i) all data provided by the Customer for registration in order to create the Account is accurate, non-misleading and complete; (ii) any changes in the registration data will be reported to biteaway prior to each purchase of a Product; and (iii) the Customer, unless a legal entity, is at least eighteen years old at the time of registration.

2.5. Each Account that the Customer opens for himself or a legal entity shall be personal and may not be transferred to any other individual or legal entity without our express authorisation.

2.6. The Customer shall choose a password upon registration and is obliged to keep the password secret unless disclosure is required by law. The Account, username and password are solely for the Customer’s personal use and the Customer may not permit anyone else to use his Account, user name or password.

2.7. The Customer agrees to make every reasonable effort to prevent unauthorised third parties from accessing the Platform with his password.

2.8. The Customer acknowledges that we have the right to terminate the Account and disable the Customer’s password and access to the Platform immediately in our free discretion.

3. Use of the Platform

3.1. When the Customer visits the Platform or send emails to us, he is communicating with us electronically. He consents to receive communications from us electronically.

3.2.Whilst we make every reasonable effort to present accurate information on our Platform, the information may contain typographical errors or inaccuracies and may not be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after the Customer has submitted his order). Such errors, inaccuracies or omissions may relate to a Product description, pricing and availability and entitle us to terminate the respective Confirmed Order with immediate effect.

3.3. We may, without notice to the Customer, update or otherwise modify the Platform, the Products and the Services in our sole discretion at any time, including without limitation providing updates or modifying features or functionality, or removing features or functionality (collectively, “Updates”). The Agreement applies to all such Updates.

3.4. The Customer shall use the Platform only for the purpose of ordering Products and for no other purposes.

3.5. Except expressly provided in the Agreement, Customer shall not: (i) download, store, reproduce, transmit, display, distribute or take screen shot of any part of the Platform; (ii) sell, rent, lease or make otherwise available or permit access to the Platform to any third party; (iii) use or attempt to use any deep-link, scraper, robot, spider, data mining, computer code or any other device, tool or program to access, acquire or monitor any part of the Platform; (iv) violate the security of the Platform or attempt to gain unauthorised access to the Platform; (v) provide on the Platform any information or use the Platform or parts thereof in any manner that infringes or violates the rights of biteaway or any third party, the applicable laws or regulations; (vi) to refrain from performing any action which may impair the operability of the Platform; (vii) use the Platform in any manner that is unlawful or harms biteaway (including but not limited to the brand of biteaway); or (viii) remove any proprietary notices or labels from the Platform, the Products or the Services.

3.6. The Customer alone is responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to proceed orders, access to our Platform and use the Services.

3.7. The Platform may contain links which will direct the Customer to external websites or webpages operated by third parties (collectively, the “Third Party Sites”). In addition, certain Third Party Sites also may provide links to our Platform. We do not control and are not responsible or liable for the accuracy, security or reliability of any Third Party Sites or for any content on or available from such Third Party Sites. Access to any Third Party Sites is at the Customer’s own risk and we will have no liability for any loss or damage that the Customer may suffer regarding Third Party Sites.

3.8. If the Customer sends us any comments, feedback, suggestions, ideas and/or other communications (collectively, the “Communications”) through our Platform or otherwise, he herewith grants to us the unlimited right to copy, reproduce, publish, transmit, distribute, display, post, modify, create derivative works from or otherwise use or exploit (collectively, the “Use”) such Communications. We shall have the unlimited right to Use any ideas, concepts, know-how or techniques contained in any Communications the Customer sends to us for any purpose whatsoever including, but not limited to, developing, manufacturing, and marketing Products using such information.

4. Orders

4.1. The Customer may place orders to purchase one or several Products on our Platform (the “Order”). Any minimum or maximum Order value, if any, is indicated on the Platform.

4.2. After placing an Order, the Customer will receive an email from us acknowledging that we have received the Order and giving the Customer an Order number and a summary of the Customer’s Order. This does, however, not mean that the Order has been accepted by us. The Order of the Customer constitutes an offer to us to purchase a Product. All Orders are subject to acceptance by us, and we will confirm such acceptance to the Customer by sending the Customer an email that confirms that the Product has been dispatched (the “Dispatch Confirmation”).

4.3. The contract between biteaway and the Customer concerning the sale of one or several Products ordered by the Customer (the “Confirmed Order”) will only be valid at the time we send the Dispatch Confirmation for the relevant Product(s) to the Customer.

4.4. Each Confirmed Order will relate only to those Products whose dispatch we have confirmed in the Dispatch Confirmation. We will not be obliged to supply any other Products which may have been part of the Customer’s Order until the dispatch of such Products has been confirmed in a separate Dispatch Confirmation.

4.5. We may choose to reject one or several Orders of the Customer for any reason in our free discretion and we will not be liable to the Customer or to anyone else in those circumstances.

4.6. We reserve the right to cancel a Confirmed Order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in Product or pricing information, or problems identified by our credit and fraud avoidance department. Any liability of us concerning such cancellation shall be excluded.

4.7. If we reject an Order of a Customer or cancel a Confirmed Order, we will endeavour to notify such Customer within a reasonable time after he placed the Order.

4.8. If the Order of a Customer is rejected or a Confirmed Order is cancelled after the credit card (or other payment account) has been charged, we will issue a credit to Customer’s credit card (or other applicable payment account) in the amount of the charge.

5. Price and Payment

5.1. The price of any Products will be as quoted on our Platform from time to time (the “Price”), except in cases of obvious errors.

5.2. The Price excludes VAT and all other related taxes at the applicable local rates, if any, and delivery costs. Such related taxes and delivery costs will be added to the total amount due and displayed on the Platform during the ordering process.

5.3. The Products shall be paid in US Dollars unless otherwise agreed in the applicable Confirmed Order.

5.4. The payment is due at the time the Order has been placed by the Customer on our Platform.

5.5. All Prices are notwithstanding any other provision of the Agreement subject to change at any time by us, but changes will not affect Confirmed Orders.

5.6. We cannot complete an Order of a Customer until he has paid for it in full. Payment can be made by most major credit cards, by completing the relevant details on the Platform during the ordering process.

5.7. By using a credit card to pay for an Order, the Customer confirms that the card being used is his card. All fields indicated as compulsory must be completed.

5.8. All credit card holders are subject to validation checks and authorization by the card issuer. If the issuer of the Customer’s card refuses to authorize payment we will not accept the Customer’s Order and we are not obliged to inform the Customer of the reason for the refusal.

5.9. We are not responsible for the Customer’s card issuer or bank charging the Customer as a result of our processing of Customer’s credit card payment in accordance with the Customer’s Order.

5.10. It is always possible that, despite our best efforts, some of the Products listed on our Platform may be incorrectly priced. We will rectify any such errors as soon as possible once we become aware of them. If a Product’s correct price is different from the price stated on our Platform, we will normally, at our discretion, either contact the Customer for instructions before dispatching the Product, or reject Customer’s Order or terminate the respective Confirmed Order and notify the Customer of such rejection or termination.

6. Delivery of the Products

6.1. Delivery of the Products will be made to the delivery address specified in the Order of the Customer. The Products will be delivered DDP (ICC Incoterms 2010).

6.2. We can determine the mode of shipment (usually by normal mail) and the delivery time unless otherwise indicated on the Platform during the ordering process.

6.3. The delivery time amounts depending on the place of delivery to usually 3 to 15 working days after receipt of payment. Further information on delivery times is available on our Platform.

6.4. The Customer acknowledges and accepts that we have no control over the postal system and we have notwithstanding any other provision of the Agreement no liability in respect of Products that are not received by the Customer after we have dispatched them.

6.5. Due to the nature of the Products, we advise that either the Customer or a chosen representative is able to receive the Products and place it in a safe place. In the event that the packaging is opened after delivery, we will have no liability to the Customer for lost or damaged Products.

6.6. Ownership of the ordered Products will pass to the Customer on the delivery of the Products or us receiving full payment of all sums due in respect of the Products (including delivery charges), whichever time is the later.

7. Returns

7.1. Unless we receive a written complaint with full particulars from the Customer regarding a defective Product or other complaints within five business days from the date the respective Product has been delivered, such Product shall be deemed to have been delivered in good condition and be accepted by the Customer.

7.2. Due to the special nature of the Products returned opened Products will be discarded and therefore we do not accept ‘I DON’T LIKE IT’ returns. The Customer has to get familiar with the Product prior to the purchase.

7.3. Products may only be returned to us with our prior consent, at Customer’s expense (unless the Products are defective and covered by the applicable warranty according to Section 9.1 below), and according to our directions. Any Products returned in contravention of this Section 7 will not be the subject of any refunds or replacements by us and the Customer will continue to be liable for payment of the price of such Products.

7.4. If the Customer returns Products to us in accordance with the provisions of this Section 7, and in our reasonable opinion those Products are defective and covered by the applicable warranty set out in Section 9.1 below, then we will proceed in accordance with Section 9.2 below.

8. Intellectual Property

8.1. The Customer acknowledges and agrees that, as between the Customer and biteaway, biteaway is the sole and exclusive owner of all rights, title and interest in and to the material on the Platform, the Services and any parts thereof, including, but not limited to text, images, data and software. Any rights not expressly granted to the Customer herein are reserved by us.

8.2. The Customer may not use our trademarks in connection with any product or service that is not our, in any manner that is likely to cause confusion, or in any way that disparages or discredits us.

9. Limited Warranty

9.1. WE WARRANT THAT ANY PRODUCT PURCHASED BY THE CUSTOMER UNDER THE AGREEMENT IS FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP FOR A PERIOD OF […] DAYS OF FROM DATE OF THE DELIVERY OF THE PRODUCT, PROVIDED THAT (I) THE CONCERNED PRODUCT HAS BEEN USED AND STORED IN ACCORDANCE WITH THE INSTRUCTIONS OF US AND THE MANUFACTURER OF THE PRODUCT; AND (II) OBVIOUS DEFECTS HAVE BEEN COMMUNICATED TO US WITHIN FIVE DAYS FROM THE DATE OF THE DELIVERY OF THE CONCERNED PRODUCT.

9.2. IF THE CONDITIONS OF THE WARRANTY SET OUT IN THE FOREGOING PARAGRAPH ARE FULFILLED, THE CUSTOMER’S SOLE REMEDY AND OUR SOLE OBLIGATION SHALL BE ONE OF THE FOLLOWING OPTIONS, SUCH OPTION TO BE SELECTED BY US IN OUR FREE DISCRETION: WE MAY EITHER (I) REPLACE THE PRODUCTS WITH OTHER PRODUCTS; OR (II) TERMINATE THE RESPECTIVE CONFIRMED ORDER AND REFUND THE RESPECTIVE PRICE PAID BY THE CUSTOMER.

9.3. THE FOREGOING WARRANTY AND REMEDY STATES CUSTOMER’S SOLE AND EXCLUSIVE WARRANTY AND REMEDY ARISING OUT OF OR CONNECTED WITH THE AGREEMENT AND THE PRODUCTS, AND BITEAWAY’S ENTIRE LIABILITY, FOR BREACH OF THE WARRANTIES PROVIDED UNDER THE AGREEMENT. ANY OTHER WARRANTY AND REMEDY SHALL BE FULLY EXCLUDED. THE WARRANTY LIMITATIONS SET OUT BELOW SHALL IN NO ASPECT LIMIT THE FOREGOING GEN-ERAL LIMITATION OF WARRANTIES.

9.4. WE TAKE ALL REASONABLE MEASURES NECESSARY TO TRY TO EN-SURE THAT THE PLATFORM AND THE CONTENT THEREOF ARE FREE FROM VIRUSES AND DEFECTS BUT CANNOT GUARANTEE THAT CUS-TOMER’S COMPUTER EQUIPMENT, HARDWARE OR SOFTWARE OR ANY DATA STORED OR CREATED BY CUSTOMER’S COMPUTER EQUIPMENT, HARDWARE OR SOFTWARE (COLLECTIVELY, “EQUIPMENT”) WILL NOT BE DAMAGED, CORRUPTED, LOST OR OTHERWISE AFFECTED IF THE CUSTOMER ACCESSES OR USES OUR PLATFORM OR ANY CONTENT THEREOF. WE RECOMMEND THAT THE CUSTOMER TAKES ALL STEPS NECESSARY TO PROTECT HIS EQUIPMENT WHEN USING OUR PLAT-FORM OR ANY CONTENT THEREOF, SUCH AS INSTALLING REPUTABLE ANTI-VIRUS SOFTWARE.

9.5. CUSTOMER ACKNOWLEDGES THAT NEITHER WE NOR OUR THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COM-MUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACIL-ITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAIL-URES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

9.6. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND UNLESS SPECIF-ICALLY OTHERWISE PROVIDED IN SECTION 9.1 ABOVE, THE FOLLOW-ING LIMITATION OF WARRANTIES APPLIES: WE ARE NOT RESPONSIBLE FOR THE CONSEQUENCES OF, OR RELIANCE ON, ANY MATERIALS (IN-CLUDING THIRD PARTY MATERIALS) AVAILABLE THROUGH OUR PLAT-FORM, THE SERVICES PROVIDED THEREUNDER OR THE PRODUCS SOLD BY US, AND THE RISK OF DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH THE CUSTOMER. THE USE OF THE PLATFORM, THE SERVICES AND THE PRODUCTS IS ENTIRELY AT THE CUSTOMER’S OWN RISK. THE PLATFORM, THE SERVICES AND THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EITHER EX-PRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MER-CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON

9.7. IN-FRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
NOTHING CONTAINED IN THE AGREEMENT OR OUR PLATFORM SHOULD BE CONSTRUED AS MEDICAL, COMMERCIAL, LEGAL OR OTH-ER PROFESSIONAL ADVICE. DETAILED PROFESSIONAL ADVICE SHOULD BE OBTAINED BEFORE TAKING OR REFRAINING FROM ANY ACTION BASED ON ANY OF THE INFORMATION CONTAINED IN THE AGREEMENT, THE PLATFORM OR ANY COMMUNICATIONS PROVIDED TO THE CUSTOMER AS A RESULT OF CUSTOMER’S USE OF OUR PLAT-FORM.

9.8. WHILE WE WORK TO ENSURE THAT PRODUCT INFORMATION IS COR-RECT, ON OCCASION MANUFACTURERS MAY ALTER THEIR PRODUCTS. ACTUAL PRODUCT PACKAGING AND MATERIALS MAY CONTAIN MORE AND/OR DIFFERENT INFORMATION THAN THAT SHOWN ON OUR PLAT-FORM. FOR THESE REASONS THE CUSTOMER SHOULD NOT RELY ON THE INFORMATION PRESENTED, BUT SHOULD ALWAYS READ LABELS, WARNINGS, AND DIRECTIONS BEFORE USING A PRODUCT. FOR ADDI-TIONAL INFORMATION ABOUT A PRODUCT, THE CUSTOMER SHOULD CONTACT THE MANUFACTURER. CONTENT ON OUR PLATFORM IS FOR REFERENCE PURPOSES AND IS NOT INTENDED TO SUBSTITUTE FOR ADVICE GIVEN BY A PHYSICIAN, PHARMACIST, OR OTHER LICENSED HEALTH-CARE PROFESSIONAL. THE CUSTOMER SHOULD NOT USE THIS INFORMATION AS SELF-DIAGNOSIS OR FOR TREATING A HEALTH PROBLEM OR DISEASE. THE CUSTOMER SHOULD CONTACT HIS HEALTH-CARE PROVIDER IMMEDIATELY IF HE SUSPECTS THAT HE HAS A MEDICAL PROBLEM. NEITHER WE NOR PRODUCT MANUFACTURERS ASSUME ANY LIABILITY FOR INACCURACIES, MISSTATEMENTS, OR OMISSIONS.

9.9. THE CUSTOMER WARRANTS THAT (I) HE HAS ALL NECESSARY POWER AND AUTHORISATION TO ACCEPT THE AGREEMENT; (II) THE AGREE-MENT IS LEGAL, VALID, BINDING AND ENFORCEABLE AGAINST THE CUSTOMER; (III) THE CUSTOMER’S ACCEPTANCE OF THE PROVIDIONS OF THE AGREEMENT WILL NOT VIOLATE ANY LAW, RULE, REGULATION OR ORDER, OR ANY AGREEMENT, BINDING THE CUSTOMER; (IV) THE CUSTOMER WILL BE ABLE TO ACCEPT THE DELIVERY OF THE OR-DERED PRODUCTS; AND (V) THE CUSTOMER WILL OBSERVE ALL AP-PLICABLE LAWS AND THE PROVISIONS OF THE AGREEMENT.

10. Limitation of Liability

10.1. UNLESS EXPLICITLY OTHERWISE PROVIDED IN THE AGREEMENT, (I) THE LIABILITY OF EACH PARTY UNDER OR IN CONNECTION WITH THE PRODUCTS, THE PLATFORM, THE SERVICES AND THE AGREEMENT SHALL BE LIMITED TO THE EXTENT POSSIBLE BY THE GOVERNING LAW; AND (II) EACH PARTY SHALL, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOT BE LIABLE UNDER OR CONNECTED WITH THE AGREEMENT, STRICT LIABILITY OR ANY OTHER THEORY.

10.2. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BITEAWAY SHALL NOT BE LIABLE FOR: (I) FOR ERROR OR INTERRUPTION OF USE OF THE PLATFORM, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (III) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (IV) FOR ANY USE OF THE PRODUCTS BY THE CUSTOMER OR ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO A USE FOR WHICH THE PRODUCTS ARE NOT INTENDED TO

10.3. THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO THE CUSTOMER’S INDEMNIFICATION.

11. Indemnification

THE CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS BITEAWAY, TO THE FULLEST EXTENT PERMITTED BY LAW, AGAINST ANY CAUSE OF ACTION, ALL LIABILITIES, LOSSES, COSTS OR EXPENS-ES (INCLUDING REASONABLE FEES AND EXPENSES OF LEGAL COUN-SEL) WITH RESPECT TO ANY CLAIM BY THIRD PARTIES ARISING OUT OF THE CUSTOMERS’ FAILURE TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT (INCLUDING BUT NOT LIMITED TO VIOLATIONS OF THE WARRANTIES OF THE CUSTOMER ACCORDING TO THE AGREE-MENT).

12. Data Protection

12.1. Each Party shall comply with all applicable legal provisions regarding data protection.

12.2. Details on the use of the personal data of the Customer by us are set forth in our Privacy Policy which is accessible on the Platform.

13. Term and Termination

13.1. The Agreement shall take effect with the registration of the Customer according to Section 2 above or the placement of the first Order by the Customer (whatever occurs earlier). Each Confirmed Order shall take effect with our Dispatch Confirmation.

13.2. Each Party may notwithstanding the foregoing provisions terminate the Agreement and each Confirmed Order separately at any time with immediate effect in the following events:

• if bankruptcy or similar events occur, including but not limited to the case of the appointment of a receiver, custodian, trustee, conservator, administrator or liquidator or any other officer with similar powers for a Party;
• in case of ceasing of business, winding up or liquidation of a Party saves for the purposes of corporate reconstruction;
• in case the other Party is in material default regarding its obligations under the Agreement and has not cured such material default within ten days after receipt of a written notice of the other Party.

13.3. Moreover, we may terminate the Agreement or cancel each Confirmed Order separately in cases specifically provided under the Agreement. Any other termination or cancellation right of us and the Customer shall be excluded.

13.4. Upon termination or expiration of the Agreement, (i) Customer’s right to access and use the Platform and the Services may be limited immediately; (ii) we are not obliged to provide the Customer with any Products anymore; and (iii) any termination or expiration of the Agreement shall not relieve the Customer of its payment obligations and all Prices for Products will become immediately due and payable to the extent the concerned Product has been dispatched.

13.5. Upon cancellation of each Confirmed Order, we are not obliged to provide the Customer with the concerned Product anymore.

13.6. Notwithstanding anything herein to the contrary, all sections of the Agreement that, by their nature, should survive termination or expiration of the Agreement will survive, including without limitation, accrued rights to payment, use restrictions, ownership, indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

14. Force Majeure

14.1. No Party shall be liable to the other if performance of any of its obligations hereunder is prevented, hindered, or delayed by the occurrence of circumstances beyond its control, which circumstances shall include, but shall not be limited to, any act of God, act of any government or other statutory undertaking, industrial dispute beyond the area of control of such Party, fire, explosion, accident and power failure, always provided (i) they constitute a force majeure event, i.e., are beyond the control of the Party invoking it; and (ii) they are not the result of the failure of such Party to perform any of its obligations under the Agreement.

14.2. Following the occurrence of any such event the Party thereby affected shall notify the other Party in due time of such occurrence and such Party shall use its reasonable endeavours to overcome or to minimise the adverse effects thereof.

14.3. Performance of the affected and related obligations shall be postponed for a period equal to the time lost by reason of the delay. If as a result of force majeure a Party is rendered definitely unable to perform, or if the period of force majeure has lasted longer than three months or as soon as it is reasonably clear that it will last longer than three months, the other Party may, with immediate effect, terminate the Agreement in writing.

15. Export Controls

15.1. The Customer is responsible for complying with Swiss and United States export controls and for any violation of such controls, including but not limited to any United States embargoes or other federal rules and regulations restricting exports.

15.2. The Customer represents, warrants and covenants that it is not (i) located in, or a resident or a national of, any country subject to a Swiss or an U.S. government embargo or other restriction, or that has been designated by the Swiss or U.S. government as a “terrorist supporting” country; and (ii) on any of the Swiss or U.S. government lists of restricted users.

16. Modifications of the Agreement

16.1. Amendments or other modifications to the provisions of the Agreement may be implemented by biteaway at any time and at its free discretion (the “Modifications”).

16.2. Such Modifications are displayed in the Customer’s account or published otherwise on the Platform before coming into effect.

16.3. The Customer must confirm the Modifications and the modified Agreement in his Account. We may terminate the Agreement with immediate effect if the Customer fails to confirm the Modifications and the modified Agreement.

16.4. This Section 16 and particularly the foregoing provision shall not be applicable to Updates according to Section 3 above.

17. Miscellaneous

17.1. The Customer may submit all notices to biteaway using the contact form provided on the Platform. biteaway may send notices to the Customer by email, fax or mail to the addresses given in the Customer’s current contact data in his Account. A written notice in the sense of the Agreement (including but not limited to a notice of termination) shall include a notice by mail, fax and an electronic message such as email.

17.2. The Customer shall not assign or transfer any of its rights and obligations under the Agreement without biteaway’s prior written consent. biteaway may assign or transfer its rights and obligations under the Agreement without the Customer’s consent.

17.3. No amendment or modification of the Agreement shall be valid or binding on the Parties unless made in writing or otherwise provided in the Agreement. This shall also apply to the foregoing sentence.

17.4. Should any provision of the Agreement be invalid or unenforceable, the remaining provisions shall be valid. In the place of an invalid provision, a valid provision is presumed to be agreed upon by the Parties, which comes economically closest to the one actually agreed upon.

17.5. Failure or neglect by biteaway to enforce any of the provisions of the Agreement shall not be construed or deemed to be a waiver of biteaway’s rights nor shall this affect the validity of the whole or any part of the Agreement, nor prejudice biteaway’s rights to take subsequent action.

17.6. ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT SHALL BE GOVERNED BY SUBSTANTIVE SWISS LAW EXCLUDING THE CONFLICT OF LAW RULES AND THE LAWS IN TREATIES INCLUDING BUT NOT LIMITED TO THE UNIFORM LAW ON PURCHASES (VIENNA TREATY).

17.7. ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT SHALL BE SOLELY AND FINALLY SETTLED BY THE COMPETENT COURT OF ZUG, SWITZERLAND.

17.8. The European Commission provides for an online dispute resolution platform, which the Customer can access here: http://ec.europa.eu/consumers/odr/. If the Customer would like to bring a matter to our attention, he can contact us under contact@biteaway.com.

Version dated August 2, 2016