Terms of Service

Effective date: Jan 1, 2024

Welcome to Kernel Foods Inc. (“Kernel,” “we,” “us” or “our”)! PLEASE READ THIS TERMS OF USE AGREEMENT (“TERMS”) CAREFULLY. THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND KERNEL. These Terms govern your use, and Kernel’s provision to you of any Kernel product or service that contains a link to these Terms, including any website operated by or on behalf of Kernel with a link to these Terms (collectively, the “Site”), any mobile application offered by Kernel with a link to these Terms (collectively, the “App” or “Application”), and any content, information, services, features, or resources available or enabled on the Site and the App (collectively, the “Services”). The Services facilitate your purchase of food and beverages (collectively, “Menu Offerings”), which may be available for pickup or consumption at our “brick and mortar” kitchens.

Your use of the Services may be subject to any additional terms, conditions and policies that we separately post on the Services and any agreements that you have separately executed with Kernel (“Supplemental Terms”) which are incorporated by reference into these Terms (together, the “Agreement”). For example, SMS communications by Kernel are governed by the Kernel SMS Terms and Conditions. To the extent there is any conflict between these Terms and any Supplemental Terms, the Supplemental Terms will control with respect to the Services or feature to which the Supplemental Terms relate.

ACCEPTANCE

BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT (i) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT; AND (ii) YOU ARE NOT A PERSON OR ENTITY BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF YOU ARE A USER UNDER THE AGE OF EIGHTEEN (18) YEARS OLD, YOU AGREE THAT YOU HAVE REVIEWED THESE TERMS WITH YOUR PARENT OR LEGAL GUARDIAN AND HE OR SHE AGREES TO THESE TERMS AND OUR PRIVACY POLICY ON YOUR BEHALF AND TAKES FULL RESPONSIBILITY FOR YOUR COMPLIANCE WITH THESE TERMS. IF THE INDIVIDUAL ENTERING INTO THE AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREES THAT: (i) THE TERMS “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND SUCH INDIVIDUAL; AND (ii) THAT THE INDIVIDUAL ENTERING INTO THE AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.

IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS AND UPDATES TO THE AGREEMENT

PLEASE BE AWARE THAT SECTION 14 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND KERNEL. AMONG OTHER THINGS, SECTION 14 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 14 CAREFULLY.

UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) EXCEPT AS OTHERWISE SPECIFIED, YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

PLEASE BE AWARE THAT SECTION 6 (KERNEL COMMUNICATIONS) OF THE AGREEMENT CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.

THE AGREEMENT IS SUBJECT TO CHANGE BY KERNEL IN KERNEL’S SOLE DISCRETION AT ANY TIME. When changes are made, Kernel will make a new copy of the Terms on the Site and, to the extent applicable, in the App, and any new Supplemental Terms will be made available from within, or through, the affected Services. We will also update the “Last Updated” date at the top of the Terms. If we make material changes to the Terms, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail if you have an Account (as defined in Section 2.1) or another manner through the Services (which may include posting an announcement on the Site or App). Kernel may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you must stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE, AND AS APPLICABLE, THE APP TO VIEW THE THEN-CURRENT TERMS.

1. USE OF THE SERVICES.

1.1 The Services. Kernel Foods is a hybrid hospitality and technology company building a novel way for consumers to experience restaurants. Kernel’s Services rely on technology to facilitate exceptional eating experiences. Kernel’s operations aim to reduce waste and friction to accomplish significant improvements in hospitality and food quality. The Services enable you and other consumers to place orders for Menu Offerings (each, an “Order”) directly via the Site or the App for pick-up in one of our “brick and mortar” restaurants or for convenient delivery by an independent driver to a location of your choice. If you elect to dine in one of Kernel’s eat-in kitchens, you will receive an SMS message notifying you that your Order is ready for pickup and another message containing a code you can use to obtain your Order from where it is securely held by us in the restaurant.

Please note that once you make a request for Services, you may no longer have the option to reschedule or cancel your order. If Kernel is able to reschedule or cancel your request, you may be charged a fee and/or may not be refunded for items that have been purchased on your behalf. We may require minimum amounts to place an Order via the Services and we may also cap Orders at a maximum amount per Order. Please check the services to verify these amounts.

1.2 Rights to use the Services. The Services, and any parts thereof, are protected by copyright laws throughout the world. Subject to the Agreement, Kernel grants you the right to access and use the features and functionality of the Site. Unless otherwise specified by Kernel in a separate license, your right to use any part of the Services is subject to the Agreement. Kernel, its suppliers, and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the Services terminates the licenses granted by Kernel pursuant to the Agreement.

1.3 Application License. For any App made available as part of the Services, Kernel grants you, subject to your compliance with the Agreement, a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store-Sourced Application”), you will only use the App Store-Sourced Application: (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play-Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.

1.4 Updates. You understand that the Services are evolving. You acknowledge and agree that Kernel may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services. Any future release, update or other addition to the Services shall be subject to the Agreement.

1.5 Certain Restrictions. By accessing and using the Services you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or any portion of the Services, including the App, or any content displayed thereon; (b) use any metatags or other “hidden text” using Kernel’s name or trademarks; (c) frame or utilize framing techniques to enclose any trademark, logo, or other Kernel content (including images, text, page layout or form) of Kernel; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse-compile or reverse-engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) access or use the Services in order to build a similar or competitive website, product, or service; and (f) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages or components of the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from web pages in the Services for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials). All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.

1.6 No Support or Maintenance; Necessary Equipment. You acknowledge and agree that Kernel will have no obligation to provide you with any support or maintenance in connection with the Services. As between us and you, you are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.

1.7 Ownership. Excluding any User Content that you may provide (defined in Section 4.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Kernel or Kernel’s suppliers. Neither the Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1. Kernel and its suppliers reserve all rights not granted in the Agreement. There are no implied licenses granted under the Agreement.

2. REGISTRATION AND ACCOUNTS.

2.1 Registration and Account Creation. In order to access and use certain features of the Services, you may need to register or create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) your name, an e-mail address and password. You agree to provide information required for your use of the Services that is, and to update such information so it remains, true, accurate, current and complete. Kernel reserves the right to establish eligibility criteria to use the Services, and in some cases, at our sole discretion, impose limitations or restrictions on certain Accounts including, but not limited to, deletion of Accounts.

2.2 Social Networking Site. You may be able to access the Services through a social network service (“SNS”) as part of the functionality of the Services. You may link your Account with an SNS, by allowing Kernel to access your SNS, as is permitted under the applicable terms and conditions that govern your use of each SNS. You represent that you are entitled to grant Kernel access to your SNS account (including, for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable SNS. By granting Kernel access to any SNS accounts, you understand that Kernel may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services that you have provided to and stored in your SNS account (“SNS Content”) so that it is available on and through the Services. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be User Content (as defined below). Depending on the SNS account you choose and subject to the privacy settings that you have set in such SNS account, personally identifiable information that you post to your SNS account may be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND KERNEL DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Kernel is not responsible for any SNS Content, including but not limited to, accuracy or legality of, or infringement by, the SNS Content.

2.3 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Kernel of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. Kernel cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

3. PAYMENT. 

3.1 Third-Party Payment Provider. Kernel currently uses Stripe Inc. and its affiliates, Google Pay, Apple Pay, and Union Pay, as its third-party service providers for payment services (e.g., card acceptance and related services) (each, a “Payment Processor”). By placing an Order on the Services, you agree that Kernel may share any information and payment instructions you provide with its applicable Payment Processor to the minimum extent required to complete your transaction. You also agree:

(a) Stripe. If you make any payment by Stripe, you agree to be bound by Stripe’s Privacy Policy (currently accessible here) and its Terms of Service (currently accessible here).

(b) Google Pay. If you make any payment by Google Pay, you agree to be bound by Google’s Payment Terms of Service (currently accessible here) and Google Payments Privacy Notice (currently accessible here).

(c) Apple Pay. By making payments on Apple Pay via the Services, you agree to be bound by Apple Pay’s terms and conditions (currently accessible here). If you make any payment by Apple Pay, you also agree to be bound by Apple Pay’s Privacy Notice (currently accessible here).

3.2 Payment. You agree to pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. By providing Kernel and/or our Payment Processor with your payment method (e.g., valid credit card), you agree that Kernel and/or our Payment Processor is authorized to immediately invoice your Account for all Fees due and payable to Kernel hereunder and that no additional notice or consent is required. You shall immediately notify Kernel of any change in your payment information to maintain its completeness and accuracy. Kernel reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Kernel and/or our Payment Processor or our inability to collect payment constitutes your material breach of this Agreement.

3.3 Refunds. Unless otherwise determined by Kernel, all Fees for the Services are non-refundable. If you have any requests for a refund, or if you think a correction should be made to any Fees you incurred visit the “Help” tab in your Account to initiate such requests within thirty (30) days after you incurred such Fees] or we will have no additional responsibility and you waive your right to later dispute the amounts charged. After reviewing the details in connection with any payment dispute, we may, at our sole discretion, issue you a refund or credit to use toward future Orders on the Services.

3.4 Gratuity. Kernel does not allocate any portion of your payment as a tip or gratuity to the in connection with any delivery Orders you place via the Services. You acknowledge and agree that, while you are free to provide additional payment as a gratuity to any [driver] who provides you with food Orders obtained through the Service, you are under no obligation to do so.

3.5 Taxes. The Fees do not include any Sales Tax (defined below) that may be due in connection with the Service provided under this Agreement. If Kernel determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Kernel shall collect such Sales Tax in addition to the Fees. If any services, or payments for any orders, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Kernel, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Kernel for any liability or expense Kernel may incur in connection with such Sales Taxes. Upon Kernel’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

4. USER CONTENT.

4.1 User Content. “User Content” means any and all information and content that a User submits to, or uses with, the Services (e.g., information you include in your profile, content you upload into or create through use of a feature on the Site or App, and the content of any messages you create using in-app messaging features within the Services ). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate Section 5. You further represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Kernel. Because you are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates Section 5. Kernel is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.

4.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Kernel an irrevocable, nonexclusive, royalty-free and fully-paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in connection with the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

4.3 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate Section 5 or any other provision of the Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 12, and/or reporting you to law enforcement authorities.

4.4 Feedback. If you provide Kernel with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Kernel all rights in such Feedback and agree that Kernel shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Kernel will treat any Feedback you provide to Kernel as non-confidential and non-proprietary. You agree that you will not submit to Kernel any information or ideas that you consider to be confidential or proprietary.

5. ACCEPTABLE USE POLICY. You agree not to: (a) use the Services to upload, transmit, display, or distribute any User Content that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable; (b) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (c) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (d) abuse other users’ personal information that you receive through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; I interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (g) interfere with any other user’s use and enjoyment of the Services; (h) impersonate any person or entity, including any employee or representative of Kernel; (i) record or screen-capture Content that is made available to you on the Services; or (j) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).

6. KERNEL COMMUNICATIONS.

6.1 Generally. You may have the opportunity to provide us with your phone number or e-mail address. By providing your phone number or e-mail address to us, you consent to receive SMS/text messages, and e-mail communications from Kernel. For more information on our SMS practices, please review our SMS Terms and Conditions.

6.2 Promotional E-mail Communications. If you opt-in to receive marketing or promotional e-mail communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL E-MAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.

6.3 Electronic Communications. The communications between you and Kernel use electronic means, whether you use the Services or send us e-mails, or whether Kernel posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Kernel in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kernel provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights, or your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.

7. INDEMNIFICATION. You agree to indemnify and hold Kernel (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, (c) your violation of the Agreement, or (d) your violation of applicable laws or regulations. Kernel reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Kernel. Kernel will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

8. THIRD-PARTY LINKS AND APPLICATIONS; OTHER USERS

8.1 Third-Party Links and Applications. The Services may contain links to third-party websites and services, and applications for third parties (collectively, “Third-Party Links and Applications”). Such Third-Party Links and Applications are not under the control of Kernel, and Kernel is not responsible for any Third-Party Links and Applications. Kernel provides access to these Third-Party Links and Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links and Applications. You use all Third-Party Links and Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links and Applications, the applicable third-party’s terms and policies apply, including the third-party’s privacy and data-gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links and Applications.

8.2 Other Users. Each user of the Services is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other users are solely between you and such users. You agree that Kernel will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Services, we are under no obligation to become involved. Provided, however, we reserve the right to intercede in such disputes at our sole discretion.

9. Release. You hereby release and forever discharge Kernel (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including interactions with any other users of the Services or any Third-Party Links and Applications). If you are a California resident, you hereby waive California Civil Code 1542 in connection with the foregoing, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by Kernel or for fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.

10. DISCLAIMERS.

10.1 Generally. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. WE HAVE NO LIABILITY FOR RESULTS IN CONNECTION WITH THE SERVICES OR THE ACTIONS OR OMISSIONS OF ANY USER. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT WHETHER PROVIDED BY KERNEL OR ANOTHER USER OF THE SERVICES. KERNEL (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

10.2 Menu Offerings. [Menu offerings are made available on an automated basis and include certain items (e.g., condiments, drinks, meals) offered by us or our third-party suppliers. We take, and we urge our suppliers to take, reasonable efforts to accurately identify the contents of the Menu Offerings and, as an example, to identify which of the eight major allergens (wheat, egg, soy, milk, treenuts, peanuts, fish, and shellfish) are included in the applicable Menu Offering and/or are processed at our manufacturing facilities; however, Kernel does not guarantee the accuracy of such identification in connection with any such Menu Offerings.] The Services may contain information about Menu Offerings that are not available at every location. A reference to a Menu Offering on the Site or the App does not imply or guarantee that it is or will be available at your location or at the time you place your Order.

11. LIMITATION ON LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KERNEL (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR ANY PART THEREOF, EVEN IF KERNEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY DOLLARS ($50) AND (B) THE AMOUNTS PAID OR PAYABLE TO KERNEL FOODS IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THE AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KERNEL AND YOU.

12. TERM AND TERMINATION. Subject to this Section, the Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of the Agreement. Upon termination of your rights under the Agreement, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Kernel will not have any liability whatsoever to you for any termination of your rights under the Agreement, including for termination of your Account or deletion of your User Content. Even after your rights under the Agreement are terminated, the following provisions of the Agreement will remain in effect: Sections 1.5, 1.6, 1.7, 2.3, and 3 - 14.1.

13. COPYRIGHT POLICY. Kernel respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:

  1. your physical or electronic signature;
  2. identification of the copyrighted work(s) that you claim to have been infringed;
  3. identification of the material on our services that you claim is infringing and that you request us to remove;
  4. sufficient information to permit us to locate such material;
  5. your address, telephone number, and e-mail address;
  6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
  7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

The designated Copyright Agent for Kernel is:

Designated Agent: Eric Wilson

Address of Agent: 511 6th Ave 102, New York, NY 10011

Telephone: (929) 255-4545

Email: eric.wilson@kernel.inc

14. ARBITRATION CLAUSE AND CLASS ACTION WAIVER . Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Kernel arbitrate disputes against one another.

14.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Kernel agree that any disagreement, controversy, or claim arising out of or relating in any way to your access to or use of the Kernel Services, including, without limitation, any communications you receive, any products sold or distributed through the Services, or any other claims arising under this Agreement and prior versions of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Kernel may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Kernel may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.

14.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Kernel. If that occurs, Kernel is committed to working with you to reach a prompt, low‐cost and mutually-beneficial resolution. You and Kernel agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Kernel agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.

To initiate an Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to Kernel that you intend to initiate an Informal Dispute Resolution Conference should be sent by e-mail to info@eatkernel.com or regular mail to our offices located at Kernel Foods, Inc., 511 6th Avenue #102 New York, NY 10011. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of the Dispute. Kernel will send Notice and a description of the Dispute to your e-mail address or regular address on file.

The Informal Dispute Resolution process lasts forty-five (45) days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to meet and confer telephonically as part of a good faith effort to resolve the Dispute at an Informal Dispute Resolution Conference. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.

The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in Informal Dispute Resolution.

14.3 Waiver of Jury Trial. YOU AND KERNEL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Kernel are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection titled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

14.4 Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 14.10 titled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Kernel agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in New York, New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Kernel from participating in a class-wide settlement of claims.

14.5 The Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, you and KERNEL agree that either party shall have the right to finally resolve the Dispute through binding arbitration.

14.6 The arbitration will be administered by the National Arbitration & Mediation ("NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the e-mail address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and e-mail address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and Kernel otherwise agree, or the Batch Arbitration process discussed in subsection 14.10 is triggered, the arbitration will be conducted in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM Rules.

You and Kernel agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

You and Kernel agree that at least fourteen (14) days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which it otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.

14.7 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from NAM's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process under subsection 14.10 is triggered, NAM will appoint the arbitrator for each batch.

14.8 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the subsection titled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection titled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection titled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

14.9 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Kernel need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration.

14.10 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Kernel agree that in the event that there are twenty-five (25) or more individual Requests of a substantially similar nature filed against Kernel by or with the assistance of the same law firm, group of law firms, or organizations, within a ninety (90)-day period (or as soon as possible thereafter), NAM shall (1) administer the arbitration demands in batches of one hundred (100) Requests per batch (or, if between twenty-five (25) and ninety-nine (99) individual Requests are filed, a single batch of all those Requests, and, to the extent there are less than one hundred (100) Requests remaining after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single, consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole-standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Kernel.

You and Kernel agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, except as expressly set forth in this provision.

14.11 Thirty (30)-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Kernel Foods, Inc., 511 6th Avenue #102 New York, NY 10011, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the e-mail address you used to set up your Kernel account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

14.12 Invalidity, Expiration. Except as provided in the subsection titled “Waiver of Class or Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Kernel as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time-barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction. You and Kernel agree that any Dispute must commence within one (1) year after the cause of action accrues; otherwise, such cause of action is permanently barred.

14.13 Modification. You and we agree that Kernel retains the right to modify this Arbitration Clause in the future. Any such changes will be posted at www.eatkernel.com/legal and you should check for updates regularly. Notwithstanding any provision in these Terms to the contrary, if Kernel makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days that such change became effective by writing to Kernel at Kernel Foods, Inc., 511 6th Avenue #102 New York, NY 10011, your continued use of the Kernel Site and/or Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or these Terms, then the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Kernel will continue to honor any valid opt-outs of the Arbitration Agreement that you made to a prior version of these Terms.

15. GENERAL.

15.1 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Kernel and not with the App Store. Kernel, not the App Store, is solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it. You acknowledge that neither Apple nor Google (each, an “App Provider”) has any obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store-Sourced Application to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App Store-Sourced Application to you and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App Store-Sourced Application. As between Kernel and the App Provider, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Kernel. You and Kernel acknowledge that, as between Kernel and the App Provider, the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App Store-Sourced Application or your possession and use of the App Store-Sourced Application, including, but not limited to: (a) product liability claims; (b) any claim that the App Store-Sourced Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. You and Kernel acknowledge that, in the event of any third-party claim that the App Store-Sourced Application or your possession and use of that App Store-Sourced Application infringes that third party’s intellectual property rights, as between Kernel and an App Provider, First Party, not the App Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store-Sourced Application.

15.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Kernel’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

15.3 Force Majeure. Kernel shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

15.4 Governing Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and Kernel agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York , New York.

15.5 Notice. Where Kernel requires that you provide an e-mail address, you are responsible for providing Kernel with your most current e-mail address. In the event that the last e-mail address you provided to Kernel is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Kernel’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Kernel at the following address: Kernel Foods, Inc., 511 6th Avenue #102 New York, NY 10011. Such notice shall be deemed given when received by Kernel by letter delivered by nationally-recognized overnight delivery service or first-class postage prepaid mail at the above address.

15.6 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.7 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

15.8 International Users. The Site and other parts of the Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Kernel intends to announce such services or content in your country. The Services are controlled and offered by Kernel from its facilities in the United States of America. Kernel makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

15.9 Export Control. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Kernel, or any products utilizing such data, in violation of the United States export laws or regulations.

15.10 Copyright/Trademark Information. Copyright © 2024, Kernel Foods, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. All goodwill generated from the use of any Kernel Marks will inure to Kernel’s benefit.

15.11 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at the contact information below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. In addition, in accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting it in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

15.12 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

15.13 Contact Information:

Kernel Foods, Inc.

511 6th Avenue #102

New York, NY 10011

USA

info@eatkernel.com


SMS Terms & Conditions

Effective date: Jan 1, 2024

These SMS Terms and Conditions (“SMS Terms and Conditions”) by Kernel Foods, Inc., (“Kernel”, “we”, “our” or “us”) govern your use, and our provision of any Kernel Message Service (as defined below). These SMS Terms and Conditions are hereby incorporated by reference into the Kernel Terms of Service located at Terms & Conditions (“Kernel TOS”). Capitalized terms used in these SMS Terms and Conditions but not otherwise defined herein will have the meaning given to them in the Kernel TOS.

Kernel may offer one or more mobile message programs (collectively, the “Message Service”) that allow users to receive SMS/MMS mobile messages by opting-in such as through online or application-based enrollment forms. By opting-in, regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by these SMS Terms and Conditions. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include service-related updates such as notifications alerting you to the status of an order you have placed with Kernel, pickup instructions, and other communications to facilitate your access to our offerings. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, reply with the keyword STOP to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP keyword command and you agree that that we and our service providers will have no liability for failing to honor such requests. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service or email us at info@eatkernel.com. Please note that the use of this email address is not an acceptable method of opting out of the Message Service. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled.

Privacy Policy

Effective date: Jan 1, 2024

Kernel Food, Inc. ("Kernel," "we", “us” or "our") provides an automated, plant-based restaurant that leverages software and robotics. This Privacy Policy describes how Kernel processes personal information that we collect through our digital properties that link to this Privacy Policy, including our website and mobile application (collectively, the “Service”), as well as our marketing activities, social media pages, live events and other activities described in this Privacy Policy. The Service is only intended for users located in the United States.

Kernel may provide additional or supplemental privacy policies to individuals for specific products or services that we offer at the time we collect personal information.

Personal information we collect

Information you provide to us. Personal information you may provide to us through the Service or otherwise includes:

Contact data, such as your first and last name, email address, address, and phone number.

Profile data, such as the username and password that you may set to establish an online account on the Service, preferences, information about your participation in our promotions or surveys, and any other information that you add to your account profile.

Communications data based on our exchanges with you, including when you contact us through the Service, communicate with us via chat features, social media, order and/or technical support or otherwise.

Transactional data, such as information relating to or needed to complete your orders on or through the Service, including order numbers and order history.

Marketing data, such as your preferences for receiving our marketing communications and details about your engagement with them.

User-generated content data, such comments, questions, messages, and other content or information that you transmit or otherwise make available on the Service, as well as associated metadata. Metadata includes information on how, when, where and by whom a piece of content was collected and how that content has been formatted or edited. Metadata also includes information that users can add or can have added to their content, such as keywords, geographical or location information, and other similar data.

Payment data needed to complete transactions, such as payment card information. Note payment card information is collected directly by our payment processor, as described in the How We Share Your Personal Information section below.

Promotion and survey data, such as information you share when you enter a promotion or complete a survey.

Other data not specifically listed here, which we will use as described in this Privacy Policy or as otherwise disclosed at the time of collection.

Third-party sources. We may combine personal information we receive from you with personal information falling within one of the categories identified above that we obtain from other sources, such as:

Partners, such marketing partners and event co-sponsors.

Third-party services, such as social media services, that you use to log into, or otherwise link to, your Service account. This data may include your username, profile picture and other information associated with your account on that third-party service that is made available to us based on your account settings on that service.

Automatic data collection. We, our service providers, and our business partners may automatically log information about you, your computer or mobile device, and your interaction over time with the Service, our communications and other online services, such as:

Device data, such as your computer or mobile device’s operating system type and version, manufacturer and model, browser type, screen resolution, RAM and disk size, CPU usage, device type (e.g., phone, tablet), IP address, unique identifiers (including identifiers used for advertising purposes), language settings, mobile device carrier, radio/network information (e.g., Wi-Fi, LTE, 3G), and general location information such as city, state or geographic area.

Online activity data, such as pages or screens you viewed, how long you spent on a page or screen, the website you visited before browsing to the Service, navigation paths between pages or screens, information about your activity on a page or screen, access times and duration of access, and whether you have opened our emails or clicked links within them.

Communication interaction data such as your interactions with our email or other communications (e.g., whether you open and/or forward emails) – we may do this through use of pixel tags (which are also known as clear GIFs), which may be embedded invisibly in our emails.

Precise geolocation data when you authorize our mobile application to access your mobile device’s location.

For more information concerning our automatic collection of data, please see the Tracking technologies section below.

Tracking Technologies

Cookies and similar technologies: Some of the automatic collection described above is facilitated by the following technologies:Note to Kernel: Confirm which of the below technologies company leverages.

Cookies, which are small text files that websites store on user devices and that allow web servers to record users’ web browsing activities and remember their submissions, preferences, and login status as they navigate a site. Cookies used on our sites include both “session cookies” that are deleted when a session ends, “persistent cookies” that remain longer, “first party” cookies that we place and “third party” cookies that our third-party business partners and service providers place.

Local storage technologies, like HTML5, that provide cookie-equivalent functionality but can store larger amounts of data on your device outside of your browser in connection with specific applications.

Session-replay technologies, such as those provided by Amplitude, that employ software code to record users’ interactions with the Services in a manner that allows us to watch video replays of those user sessions. The replays include users’ clicks, mobile app touches, mouse movements, scrolls and keystrokes/key touches during those sessions. These replays help us diagnose usability problems and identify areas for improvement. You can learn more about Amplitude at https://www.amplitude.com/privacy and you can opt-out of session recording by Amplitude at https://www.docs.developers.amplitude.com/guides/cookies-consent-mgmt-guide/

Web beacons, also known as pixel tags or clear GIFs, which are used to demonstrate that a webpage or email was accessed or opened, or that certain content was viewed or clicked.

For information concerning your choices with respect to the use of tracking technologies, see the Your choices section below.

How we use your personal information

We may use your personal information for the following purposes or as otherwise described at the time of collection:

Service delivery and operations.

• provide the Service;

• to develop new programs and services;

• enable security features of the Service;

• establish and maintain your user profile on the Service;

• facilitate purchasing features of the Service, such as by identifying and suggesting items (such as food items) for purchase;

• communicate with you about the Service, including by sending updates regarding your orders and other Service-related announcements, and support and administrative messages;

• communicate with you about events or promotions in which you participate; and

• provide support for the Service, and respond to your requests, questions and feedback.

Service personalization, which may include using your personal information to:

• understand your preferences and interests;

• personalize your experience with the Service and our Service-related communications; and

• remember your selections and preferences as you utilize the Service and when you place orders.

Service improvement and analytics. We may use your personal information to analyze your usage of the Service, improve the Service, improve the rest of our business, help us understand user activity on the Service, including which pages are most and least visited and how visitors move around the Service, as well as user interactions with our emails, and to develop new products and services For example, we may use Google Analytics and other analytics providers for this purpose. You can learn more about Google Analytics and how to prevent the use of Google Analytics relating to your use of our sites here: https://tools.google.com/dlpage/gaoptout?hl=en.

Marketing and advertising. We, our service providers and our third-party advertising partners may collect and use your personal information for marketing and advertising purposes:

Direct marketing. We may send you direct marketing communications and may personalize these messages based on your needs and interests. You may opt-out of our marketing communications as described in the Opt-out of communications section below.

Interest-based advertising. We and our third-party advertising partners may use cookies and similar technologies to collect information about your interaction (including the data described in the Tracking technologies section above) with the Service, our communications and other online services over time, and use that information to serve online ads that they think will interest you. This is called interest-based advertising. We may also share information about our users with these companies to facilitate interest-based advertising to those or similar users on other online platforms. You can learn more about your choices for limiting interest-based advertising in the Your choices section.

Compliance and protection.

• comply with applicable laws, lawful requests, and legal process, such as to respond to subpoenas, investigations or requests from government authorities;

• protect our, your or others’ rights, privacy, safety or property (including by making and defending legal claims);

• audit our internal processes for compliance with legal and contractual requirements or our internal policies;

• enforce the terms and conditions that govern the Service; and

• prevent, identify, investigate and deter fraudulent, harmful, unauthorized, unethical or illegal activity, including cyberattacks and identity theft.

To create aggregated, de-identified and/or anonymized data. We may create aggregated, de-identified and/or anonymized data from your personal information and other individuals whose personal information we collect. We make personal information into de-identified and/or anonymized data by removing information that makes the data identifiable to you. We may use this aggregated, de-identified and/or anonymized data and share it with third parties for our lawful business purposes, including to analyze and improve the Service and promote our business.

Cookies and similar technologies. In addition to the other uses included in this section, we may use the Cookies and similar technologies described above for the following purposes:

Technical operation. To allow the technical operation of the Service, such as by remembering your selections and preferences as you navigate the site, and whether you are logged in when you visit password protected areas of the Service.

Functionality. To enhance the performance and functionality of our services.

Advertising. To help our third-party advertising partners collect information about how you use the Service and other online services over time, which they use to show you ads on other online services they believe will interest you and measure how the ads perform .

Analytics. To help us understand user activity on the Service, including which pages are most and least visited and how visitors move around the Service, as well as user interactions with our emails. For example, as described above, we may use Google Analytics, Braze and other analytics providers for this purpose.

Further uses, in some cases, we may use your personal information for further uses, in which case we will ask for your consent to use of your personal information for those further purposes if they are not compatible with the initial purpose for which information was collected.

Retention

We generally retain personal information to fulfill the purposes for which we collected it, including for the purposes of satisfying any legal, accounting, or reporting requirements, to establish or defend legal claims, or for fraud prevention purposes. To determine the appropriate retention period for personal information, we may consider factors such as the amount, nature, and sensitivity of the personal information, the potential risk of harm from unauthorized use or disclosure of your personal information, the purposes for which we process your personal information and whether we can achieve those purposes through other means, and the applicable legal requirements.

When we no longer require the personal information we have collected about you, we may either delete it, de identify or anonymize it, or isolate it from further processing.

How we share your personal information

We may share your personal information with the following parties and as otherwise described in this Privacy Policy, in other applicable notices, or at the time of collection.

Affiliates. Our corporate parent, subsidiaries, and affiliates.

Delivery providers. Third parties that provide delivery services (such as Deliverect) if you choose to utilize such services. Deliverect may use your payment data in accordance with its privacy policy, https://www.deliverect.com/en/privacy-and-cookie-notice.

Service providers. Third parties that provide services on our behalf or help us operate the Service (including third-party application programming interfaces or APIs) or our business (such as hosting, information technology, customer support, email delivery, marketing, consumer research and website analytics).

Payment processors. Any payment card information you use to make a purchase on the Service is collected and processed directly by our payment processors, such as Stripe and Swell. Stripe may use your payment data in accordance with its privacy policy, https://stripe.com/privacy. Swell may use your payment data in accordance with its privacy policy, https://www.swell.is/legal/privacy-policy.

Advertising partners. Third-party advertising companies for the interest-based advertising purposes described above.

Third parties designated by you. We may share your personal information with third parties where you have instructed us or provided your consent to do so.

Partners. Third parties with whom we partner, including parties with whom we co-sponsor events or promotions, or with whom we jointly offer products or services.

Linked third-party services. If you log into the Service with, or otherwise link your Service account to, a social media or other third-party service, we may share your personal information with that third-party service. The third party’s use of the shared information will be governed by its privacy policy and the settings associated with your account with the third-party service.

Professional advisors. Professional advisors, such as lawyers, auditors, bankers and insurers, where necessary in the course of the professional services that they render to us.

Authorities and others. Law enforcement, government authorities, and private parties, as we believe in good faith to be necessary or appropriate for the Compliance and protection purposes described above.

Business transferees. We may disclose personal information in the context of actual or prospective business transactions (e.g., investments in Kernel, financing of Kernel, public stock offerings, or the sale, transfer or merger of all or part of our business, assets or shares), for example, we may need to share certain personal information with prospective counterparties and their advisers. We may also disclose your personal information to an acquirer, successor, or assignee of Kernel as part of any merger, acquisition, sale of assets, or similar transaction, and/or in the event of an insolvency, bankruptcy, or receivership in which personal information is transferred to one or more third parties as one of our business assets.

We make commercially reasonable efforts to verify that the parties with whom our mobile application shares personal information provide a level of protection of personal information consistent with the practices described in this Privacy Policy, except that all such parties described above other than service providers and affiliates may, to the extent permitted by law, use personal information as described in their own privacy policies.

Your choices

Access or update your information. If you have registered for an account with us through the Service, you may review and update certain account information by logging into the account.

Opt-out of communications. You may opt-out of marketing-related emails by following the opt-out or unsubscribe instructions at the bottom of the email, or by contacting us. Please note that if you choose to opt-out of marketing-related emails, you may continue to receive service-related and other non-marketing emails.

Cookies. Most browsers let you remove or reject cookies. To do this, follow the instructions in your browser settings. Many browsers accept cookies by default until you change your settings. Please note that if you set your browser to disable cookies, the Service may not work properly. For more information about cookies, including how to see what cookies have been set on your browser and how to manage and delete them, visit www.allaboutcookies.org.

Mobile location data. You can disable our access to your mobile device’s precise geolocation in your mobile device settings.

Privacy settings. We make available certain privacy settings on the Service, including options to control.

Advertising choices. You may be able to limit use of your information for interest-based advertising through the following settings/options/tools:

Browser settings. Changing your internet web browser settings to block third-party cookies.

Privacy browsers/plug-ins. Using privacy browsers and/or ad-blocking browser plug-ins that let you block tracking technologies.

Platform settings. Certain platforms offer opt-out features that let you opt-out of use of your information for interest-based advertising. For example, you may be able to exercise that option for Google and Facebook, respectively, at the following websites:

- Google:

- Facebook:

Ad industry tools. Opting out of interest-based ads from companies that participate in the following industry opt-out programs:

- Network Advertising Initiative:

- Digital Advertising Alliance: optout.aboutads.info.

Mobile settings. Using your mobile device settings to limit use of the advertising ID associated with your mobile device for interest-based advertising purposes.

You will need to apply these opt-out settings on each device and browser from which you wish to limit the use of your information for interest-based advertising purposes.

We cannot offer any assurances as to whether the companies we work with participate in the opt-out programs described above.

Do Not Track. Some Internet browsers may be configured to send “Do Not Track” signals to the online services that you visit. We currently do not respond to “Do Not Track” signals. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com.

Declining to provide information. We need to collect personal information to provide certain services. If you do not provide the information we identify as required or mandatory, we may not be able to provide those services.

Linked third-party platforms. If you choose to connect to the Service through your social media account or other third-party platform, you may be able to use your settings in your account with that platform to limit the information we receive from it. If you revoke our ability to access information from a third-party platform, that choice will not apply to information that we have already received from that third party.

Delete certain of your data or close your account. You can choose to delete certain of your data through your account. If you wish to request to close your account, please contact us.

Other sites and services

The Service may contain links to websites, mobile applications, and other online services operated by third parties. In addition, our content may be integrated into web pages or other online services that are not associated with us. These links and integrations are not an endorsement of, or representation that we are affiliated with, any third party. We do not control websites, mobile applications or online services operated by third parties, and we are not responsible for their actions. We encourage you to read the privacy policies of the other websites, mobile applications and online services you use.

Security

We employ a number of technical, organizational and physical safeguards designed to protect the personal information we collect. However, security risk is inherent in all internet and information technologies and we cannot guarantee the security of your personal information.

Children

The Service is not intended for use by anyone under 13 years of age. If you are a parent or guardian of a child from whom you believe we have collected personal information in a manner prohibited by law, please contact us. If we learn that we have collected personal information through the Service from a child without the consent of the child’s parent or guardian as required by law, we will comply with applicable legal requirements to delete the information.

Changes to this Privacy Policy

We reserve the right to modify this Privacy Policy at any time. If we make material changes to this Privacy Policy, we will notify you by updating the date of this Privacy Policy and posting it on the Service or other appropriate means. Any modifications to this Privacy Policy will be effective upon our posting the modified version (or as otherwise indicated at the time of posting). In all cases, your use of the Service after the effective date of any modified Privacy Policy indicates your acknowledging that the modified Privacy Policy applies to your interactions with the Service and our business.

How to contact us

Email: info@eatkernel.com

Mail: Kernel Foods, Inc. 511 6th Avenue #102 New York, NY 10011 USA

Phone: (929) 255-4545