WL App - Owtons

These Terms of Service govern your use of and access to our cloud based service (SaaS) accessible through a mobile application and a web-based tool ,that enables (i) commercial customers in the gastronomy and the food and drink sector (hereinafter the "Buyer(s)") to communicate with, and send their orders to, their distributors (hereinafter the "Distributor(s)"), and (ii) the Distributors to manage their orders and communicate with their customers((i) and (ii) and all related services provided on or in connection with them collectively the "Service"). By accessing or using the Service, or by clicking a button or checking a box marked "I Agree" (or something similar), you acknowledge that you have read, understood, and agree to be bound by these Terms of Service (this "ToS") and have read and understood our Privacy Notice listed below. If you do not agree to this ToS then you should not use the Service. This ToS applies to all Buyers and Distributors who make use of the Service (each a “Customer”), unless a Customer has entered into a separate contract with Choco for use of the paid Service. In that case that contract between the relevant Customer and Choco shall apply in its entirety and supersede this ToS. 

The Service is offered by Choco Communications GmbH along with its affiliates (collectively, "Choco," "we," "our" or "us"). This ToS forms a binding ToS between the entity on whose behalf you are accepting this ToS and the relevant Choco entity identified below (each a “Party” and together “Parties”). You (as the person accepting this ToS) represent and warrant that you have the legal authority to bind that entity to this ToS and that you use the Service on that entity’s behalf. The references to “you” or “Customer” refer to that entity on behalf of which this ToS is accepted. 

The provisions of this ToS shall prevail over any other general or specific terms and conditions of the Customer. This ToS may be supplemented by Choco, where appropriate, by specific terms of use for certain aspects of the Services, which shall supplement this ToS and shall take precedence in the event of any conflict.

Please read this ToS carefully to ensure that you understand each provision. For the Customers based in the USA, this ToS contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.

1. Access and Use

1.1 Eligibility: The Service is designed and intended for professional use only and is aimed exclusively at business customers, in particular the ones active in the catering, gastronomy and the food trade. Consumers are not permitted to use the Service. The Service is not available to any person who was previously removed from the Service by Choco. Users of the Service must be at least 21 years old if they are based in the United States, and at least 18 years old in all other jurisdictions, and must have the legal capacity to enter into binding contracts under the applicable laws of their place of residence.

1.2 Limited license: The Service is accessible via mobile and web-based applications and any other online tools that may be designated by Choco. Subject to the terms and conditions of this ToS, the Customer is hereby granted a non-exclusive, limited, non-transferable, freely revocable, non-sublicensable license to install, access and use the Service solely for its business operations as permitted by the features of the Service. Use of the Service for any purpose not expressly permitted by this ToS is strictly prohibited. 

1.3 Accounts: The Customer’s end-users (the “Users”) will each have a user account that will be managed by the admin(s) of the Customer. When creating accounts, the Users must provide accurate and complete information and must keep their information up to date. The Customer is solely responsible for the activity that occurs under the accounts of its Users; for its Users’ compliance with the ToS and for their acts and omissions. The Customer shall ensure that its Users keep their account password secure. The Customer must notify Choco immediately if there is any suspicion that the access data may have become known to unauthorized persons. Choco will not be liable for any losses caused by any unauthorized use of an User account if it occurs through no fault of Choco.

1.4 Changes to the Service: Choco may, without prior notice, change or discontinue the features of the Service, introduce new features to the Service or stop providing the Service at any time.  

1.5 AI-Powered Services: The Service may encompass functionalities that are powered by artificial intelligence (“AI”). The Customer will retain ownership over the input it provides and the output generated by AI based on the input. Choco does not guarantee the accuracy, completeness and reliability of AI-powered Services and the output generated by AI and, to the extent permitted by law, disclaims all warranties and liability for such output. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and subcontractors’) aggregate liability shall be limited to GBP 100 (one hundred pounds). Output generated by AI may not be unique to the Customer and it does not represent Choco’s views. The Customer undertakes to comply with the fair use policies of Choco’s third party service providers when using AI-powered functionalities. In the event of a conflict between this section and the rest of the ToS, this section shall take precedence.

1.6 Third-Party Services. Choco may make ancillary services or add-ons that are offered by third parties available on the Service (“Third-Party Services”). Third-Party Services are subject to the specific terms and conditions of the third-party service provider (“Third-Party Service Provider”). The Customer acknowledges that a Third-Party Service Provider may refuse to provide services to the Customer at its own discretion. Choco does not control the Third-Party Services and is not responsible, directly or indirectly, for any damage or loss resulting from the use of or reliance on these Third-Party Services. For the avoidance of doubt, Third-Party Services do not constitute Services as defined under this ToS and are not subject to this ToS. The Customer shall be fully responsible for its use of the Third-Party Services. 

If enabled by the relevant Distributor with whom the order is placed, the Buyer may pay its orders using the Third-Party Service for payments. At no point or time do funds transmitted by Buyers to Distributors pass into Choco's control and/or ownership; this includes any refunds or chargebacks or any kind of fund movement. The available payment methods and their terms depend on the ToS between the Third-Party Service Provider and the Distributor. Choco has no control over or liability for these payments.

1.7 Advertisements. The Service may include advertisement placements or promotions of the Distributors or third-party advertisers, such as of food producers. Choco does not endorse, verify, or make any representations or warranties regarding any products advertised in the advertisements or for their content. Any interactions, transactions with or participation in the promotions of these advertisers are solely between you and such advertisers. You agree that Choco shall not be responsible for any loss or damage of any sort arising from your dealings with the advertisers. Some of the advertisements may contain links to third-party websites or materials. Choco does not endorse, control or assume any responsibility for any such third-party websites. If you access such a website via a third-party link, you do so at your own risk and you acknowledge that this ToS and Choco’s Privacy Notice do not apply to your use of such websites. 

2. Customer Responsibilities 

2.1 Customer obligations: Without prejudice to any other obligations provided for herein, each Customer shall: (i) comply with applicable laws and regulations when using the Service, including, but not limited to, any laws applicable to sending communications; (ii) use the Service in an honest and truthful manner and observe reasonable rules of politeness, courtesy and decency in its exchanges with other customers and users; (iii) provide Choco with all necessary information and actively cooperate with Choco with regard to its use of the Service. The Customer is responsible for arranging the internet connection and the necessary equipment to use the Service. 

2.2 Usage restrictions: The Customer agrees not to engage in any of the following prohibited activities: (i) rent, lease, distribute, sublicense, or otherwise provide third parties access to, the Service; (ii) disassemble, decompile or reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (iii) modify, copy or create derivative works of the Service or disclose any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (iv) interfere with the proper functioning of the Service or compromise the system integrity or security of the Service, including by imposing disproportionately large load on our infrastructure; (v) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service; (vi) send or store any viruses, worms, or other software agents through the Service; (vii) gain unauthorised access to personally identifiable or commercially sensitive information on the Service; (viii) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity; (ix) use the Service to build competing services or for purposes other than those for which it was designed for (e.g., for sending unsolicited communication); and (x) to attempt to any of the foregoing.  

2.3 Suspension. Choco is entitled, but not obliged, to monitor the Customer’s and its Users’ use of the Service and may suspend their access to the Service (i) if Choco reasonably believes a violation of the ToS has occurred, (ii) if the suspension is necessary for technical or security reasons or to avert imminent damage to Choco, the Customer or third parties or (iii) if Choco is obliged to suspend access by law. Choco will use commercially reasonable efforts to provide advance notice of suspension, unless prohibited by law. Choco shall lift the suspension if the reason for the suspension no longer exists. Choco will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the Customer may incur as a result of a suspension triggered by its own acts or omissions.

2.4 Relationship with Other Customers and Users. The Customer is solely responsible for its Users’ use of the Service and for their interactions with other users and customers. By making the Service available, Choco merely provides the infrastructure for placing and managing orders and for communication. Choco itself will not directly or indirectly become a party to the relationship between the Distributors and the Buyers. Each order (individual sale and purchase of products) shall be concluded solely between the relevant Buyer and the Distributor. All products that may be ordered from or via the Service are transported and delivered to the Buyer by the applicable Distributor, not by Choco. Title to products ordered on the Service, as well as the risk of loss for such products, is subject to the contract between the Buyer and the Distributor. Choco will have no liability whatsoever with regard to the performance of orders or the communications between the Buyers and the Distributors; and shall not be a party to disputes of any kind between users.  

3. Customer Content

3.1 License to Customer Content. Some areas of the Service allow content such as profile information, order information, product information, images, comments, questions, and other content or information to be submitted, posted, displayed, or otherwise to be made available by or on behalf of the Customer (altogether “Customer Content”). By making Customer Content available on or through the Service, the Customer expressly grants Choco a royalty-free, sublicensable, transferable, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, edit, translate, display and make derivative works of the Customer Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for the purpose of operating and providing the Service. 

3.2 The Customer agrees that Choco may collect, analyze and use information about the Customer’s use of the Services (“Usage Data”) and Customer Content for internal research, security, analytics purposes, for improving and providing its Services and for displaying relevant Ads and ad measurement purposes. Choco shall be entitled to create aggregated and/or de-identified information derived from Usage Data and Customer Content and use such information at its own discretion without being subject to any limitations, to the extent it does not identify the Customer or any person. Choco may sublicense or transfer the rights granted herein to its subcontractors. In addition, Choco reserves all right, title, interest and ownership over aggregated and/or de-identified information derived from User Data and Customer Content.

3.3 Warranties. In connection with its Customer Content the Customer affirms, represents and warrants that  (i) it owns or will obtain the necessary rights and permissions to share the Customer Content through the Service or otherwise make it available to Choco and to authorize the use of the Customer Content by Choco as contemplated in this ToS; (ii) it will provide the required information notices and obtain necessary consents under applicable data protection laws from the persons whose personal data may be included in the Customer Content for sharing their data with Choco; (iii) the Customer Content and use thereof as contemplated by this ToS does not violate any law or infringe any rights of any third party, including, but not limited to, any intellectual property rights and privacy rights; and (iv) all Customer Content and other provided information is truthful and accurate.

3.4 Responsibility for the Customer Content. The Customer shall be solely responsible for the Customer Content and the consequences of posting, publishing, sharing or otherwise making it available on the Service, and agrees that Choco is only acting as a passive conduit for online distribution and publication of the Customer Content. The Customer understands and agrees that it may be exposed to content posted by other customers and their users which may be inaccurate, inappropriate or unlawful. Choco takes no responsibility and assumes no liability for content provided by other customers and their users on the Service. 

3.5 Content Rules. The Customer shall only transmit information that is truthful, accurate, lawful and appropriate to the purpose of the Service. In particular, the following content is prohibited: (a) content that is not reasonably related to the ordering or execution of contracts between the Buyers and the Distributors (such as political or religious content); (b) content that is pornographic, obscene, indecent, shocking or unsuitable for a family audience, defamatory, offensive, violent, racist, or xenophobic; (c) unlawful content such as illegal hate speech, terrorist content, unlawful discriminatory content; (d) content that violates personal rights; (e) content that breaches a confidentiality ToS or discloses a trade secret without permission; (f) content that is false or misleading or promotes illegal, fraudulent or deceptive activities.

3.6 Removal. Choco is not obliged to monitor the Customer Content but reserves the right to do so at its own discretion. Choco may, without prior notice, remove or disable access to any Customer Content (i) if it violates this ToS including Choco policies made available to the Customer, (ii) upon request of the supervisory authorities or (iii) if it is likely to give rise to complaints by third parties or other Choco customers. Due account of the fundamental rights and freedoms and legitimate interests of all parties involved will be taken when making decisions about removal of the Customer Content. Choco will comply with any binding orders of courts and supervisory authorities to remove any illegal Customer Content from the Service.

3.7 Backup. Choco will use commercially reasonable efforts to ensure integrity and availability of the Customer Content. Notwithstanding the foregoing the Customer shall be solely responsible for the Customer Content and shall take back-ups on a regular basis and commensurately with the risk.

4. Our Proprietary Rights

4.1 Choco’s Intellectual Property. Except for the Customer Content, the Service and all materials therein including without limitation, software, images, graphics, illustrations, logos, photographs, audio, videos, music, and all intellectual property rights related thereto, are the exclusive property of Choco and its licensors. Choco and its licensors reserve all rights not expressly granted herein in the Service.  

4.2 Feedback. You may choose to, or we may invite you to, submit comments or ideas about the Service, including without limitation product testimonials and/or other feedback regarding potential improvements to the Service (collectively, "Feedback"). By submitting any Feedback, you agree that we are free to use the Feedback without any compensation, royalty, attribution or restriction based on intellectual property rights or otherwise, and/or to disclose the Feedback on a non-confidential basis to anyone, including for our own advertising and marketing purposes. You further acknowledge that, by acceptance of your submission, Choco does not waive any rights to use similar or related ideas previously known to Choco, or developed by its employees, or obtained from sources other than you. 

4.3 Customer Reference. Choco may use the Customer’s name and logo in its marketing materials, presentations and similar communications to refer to the Customer as a customer. The Customer may revoke this consent any time by giving prior written notice.

5. [reserved]

6. No Warranty

Unless specifically agreed otherwise between the Parties the use of the Service is free of charge and it is provided on an "as is" and "as available" basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, provided by Choco or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, Choco, its affiliates and licensors do not warrant that: (i) the Service will meet your requirements; (ii) the Service will be available at any particular time or location, uninterrupted or secure; (iii) any defects or errors will be corrected; or (iv) the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk. Further, Choco does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service, including products offered by the Distributors, advertisers and Third-Party Service Providers or any content shared by other users. The disclaimers, exclusions, and limitations of warranty under this ToS will not apply to the Customer to the extent prohibited by applicable law.

7. Limitation of Liability 

To the maximum extent permitted by applicable law, in no event shall Choco, its affiliates, agents, directors, employees, subcontractors or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Service. To the maximum extent permitted by applicable law, Choco assumes no liability or responsibility for the Service including but not limited to errors, security breaches, service interruptions and third-party content. To the maximum extent permitted by applicable law, Choco’s total cumulative liability, including that of its affiliates, agents, directors, employees, subcontractors, and licensors, for any claims, proceedings, liabilities, obligations, damages, losses, or costs arising out of or in connection with the Service shall not exceed GBP 100.00 in the aggregate. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Choco has been advised of the possibility of such damage.

8. Indemnification

8.1 Customer indemnification. The Customer agrees to defend, indemnify and hold harmless Choco and its affiliates, agents, licensors, subcontractors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) the Customer’s violation of any term of this ToS, including without limitation its breach of any of the representations and warranties; (ii) the Customer’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iii) the Customer’s violation of any applicable law, rule or regulation; (iv) the Customer Content; or (v) the Customer’s willful misconduct or gross negligence.

8.2 Choco indemnification. Choco will defend the Customer against third-party claims alleging that the Service, when used as permitted under this ToS and without modification, infringes a third-party’s intellectual property rights. In such cases, Choco may, at its sole discretion, (i) modify the infringing portion of the Service to make it non-infringing, or (ii) or replace the infringing portion of the Service with a non-infringing alternative, or (iii) terminate the Customer’s access to the Service. This indemnification does not apply to claims arising from (a) the Customer’s use of the Service in violation of this ToS, (b) the Customer content, data, or integrations, or (c) third-party software or services. This Section states Choco’s sole liability, and the Customer’s sole and exclusive right and remedy, for infringement of third-party intellectual property rights by the Service.

9. Term and Termination

9.1 Term. The ToS becomes effective upon your acceptance or your use of the Service, whichever is earlier, and runs for an indefinite period until terminated.

9.2 Termination. The Customer may terminate the ToS at any time with 7 days' notice by sending a corresponding message by e-mail to Choco at contact@choco.com. Choco may terminate the ToS without giving any reason and close the Customer’s account, subject to at least 14 days' notice. In addition, either party shall be entitled to terminate the ToS immediately if the other party has materially breached this ToS.

9.3 Consequences of termination. After termination, Choco will have no obligation to continue storing the Customer Content and will delete the Customer Content in its systems upon Customer’s request or in line with its retention policy, whichever is earlier. Notwithstanding the foregoing, Choco will be entitled to retain the Customer Content if Choco is obliged to do so by law or to the extent that the Customer Content is required for accounting and documentation purposes or for the operation of the Cloud Service. 

9.4 Closure of account. Choco also reserves the right to close and delete a User or Customer account that has remained inactive for a continuous period of six months. Deletion of Customer account shall result in the termination of the ToS with that Customer.  

10. Additional Terms for Mobile Applications

10.1 Mobile Applications. The Service is available in the form of a mobile application accessible via a mobile device. To use any mobile application, you must have a mobile device that is compatible with the mobile applications. Choco does not warrant that its mobile applications will be compatible with your mobile device. You may use mobile data in connection with the mobile applications and may incur additional charges for these services. You agree that you are solely responsible for any such charges. You acknowledge that Choco may from time-to-time issue upgraded versions of the mobile applications and may automatically upgrade the version of the Choco mobile application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of this ToS will apply to all such upgrades. 

10.2 Mobile Applications from Apple App Store. The following applies to Choco’s mobile application you download from the Apple App Store ("App Store App"): You acknowledge and agree that this ToS is solely between you and Choco, not Apple, Inc. ("Apple") and that Apple has no responsibility for the App Store App or content thereof. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store App. In the event of any failure of the App Store App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store App other than refunding purchase price paid for the App Store App via App Store (if any), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this ToS and any law applicable to Choco as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store App or your possession and/or use of the App Store App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this ToS and any law applicable to Choco as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store App or your possession and use of that App Store App infringes that third party's intellectual property rights, Choco, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this ToS. You and Choco acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this ToS as relates to your license of the App Store App, and that, upon your acceptance of the terms and conditions of this ToS, Apple will have the right (and will be deemed to have accepted the right) to enforce this ToS as relates to your license of the App Store App against you as a third-party beneficiary thereof.

10.3 Mobile Applications from Google Play Store. The following applies to Choco mobile application you download from the Google Play Store ("Google-Play App"): (i) you acknowledge that the ToS is between you and Choco only, and not with Google, Inc. ("Google"); (ii) your use of Google-Play App must comply with Google's then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Play App; (iv) Choco, and not Google, is solely responsible for its the Google-Play App; (v) Google has no obligation or liability to you with respect to the Google-Play App or the ToS; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the ToS as it relates to Google-Play App.

11. General

11.1 Confidentiality. Each party undertakes to keep the documents, data and information of the other party which are either to be regarded as confidential due to the nature of the information or the circumstances of their disclosure or have been designated or marked as confidential by the disclosing party, such as business and/or trade secrets (the "Confidential Information") strictly confidential. The duty of confidentiality shall commence upon gaining knowledge of the Confidential Information and will continue for a period of five years. The recipient party may only disclose the Confidential Information of the disclosing party to its affiliates, employees, trainees, subcontractors or consultants on a need to know basis for the performance of this ToS, provided that they are bound by the confidentiality obligations at least as protective as those contained herein and where required by law. When requests are made by judicial or administrative authorities relating to the disclosure of the Confidential Information, the receiving party shall without undue delay notify the disclosing party thereof in writing, to the extent permitted by law. This confidentiality obligation does not extend to information that (ii) is generally known or becomes known to public through no fault of the receiving party, (iii) is independently developed by the receiving party itself without access to the Confidential Information of the disclosing party or (iv) was brought to the attention of or shared with the receiving party by a bona fide third party authorized to do so. 

11.2 Force majeure. Choco shall not be liable for any failure or delay in performing its obligations under this ToS to the extent such failure or delay is caused by events beyond its reasonable control, including but not limited to acts of God, natural disasters (such as fire, flood, or storm), war, terrorism, riot, civil commotion, malicious damage, strikes, lockouts, or other industrial disputes, failure of utility services or transportation or telecommunications networks. 

11.3 Assignment. This ToS, and any rights and licenses granted hereunder, may not be transferred or assigned by the Customer. Choco may assign the ToS and its rights and obligations thereunder without the Customer’s consent. Choco also remains free to subcontract any of its obligations to its subcontractors or affiliates, Choco will remain responsible for their acts and omissions.

11.4 Changes to the ToS. Choco may, in its sole discretion, modify or update this ToS from time to time. When Choco changes the ToS in a material manner, Choco will update the 'last modified' date at the top of this page. The Customer’s continued use of the Service after any such change constitutes its acceptance of the new version of the ToS. If you do not agree to the changes, do not use or access (or continue to access) the Service.

11.5 Entire ToS/Severability. This ToS includes the Local Addendum in the Annex 1 and any amendments and additional terms the Customer may enter into with Choco in connection with the Service. It shall constitute the entire agreement between the Customer and Choco concerning the Service. If any provision of this ToS is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this ToS, which shall remain in full force and effect. In the event of a conflict among the documents making up this ToS, the order of preference will be the applicable provisions of the Annex 1 (the Local Addendum) to ToS and main body of this ToS (i.e., Terms of Service).

11.6 No Waiver. No waiver of any term of this ToS shall be deemed a further or continuing waiver of such term or any other term, and either Parties’ failure to assert any right or provision under this ToS shall not constitute a waiver of such right or provision.

11.7 Headings. Headings or titles used in this ToS are for convenience and reference purposes only and shall not be considered in the interpretation or construction of any provision of this ToS.

11.8 Contact. Please contact us at legal@choco.com with any questions regarding this ToS.

11.9 Governing law. The ToS shall be governed by the laws of the country in which the Choco entity party to this ToS is located. Any disputes arising from or in connection with this ToS shall be subject to the exclusive jurisdiction of the competent courts in that country.

Annex 1 Local Addendum

US 

1. Use by the US Government 

If the Service is used on behalf of the United States Government, then the following provision applies. The Service will be deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use of the Service and any accompanying documentation by the U.S. Government will be governed solely by this ToS and is prohibited except to the extent expressly permitted by this ToS.

2. US export laws and embargo

2.1 Choco’s Service originate in the United States, and is subject to United States export laws and regulations. The Service may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Service may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.

2.2 The Customer represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) its Users and representatives are not listed on any U.S. Government list of prohibited or restricted parties.

3. DMCA

3.1 Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Choco to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
7. The above information must be submitted to the following DMCA Agent:

Attn: DMCA Notice Choco Legal Department

Address: Wrangelstraße 100, 10997 Berlin, Germany  

Email: legal@choco.com

3.2 Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys' fees.

3.3 Please note that this procedure is exclusively for notifying Choco and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with the rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

3.4 In accordance with the DMCA and other applicable law, Choco has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Choco may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

4. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

4.1 Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This ToS shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this ToS evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this ToS shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Los Angeles County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.

4.2 Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Choco. For any dispute with Choco, you agree to first contact us at and attempt to resolve the dispute with us informally. In the unlikely event that Choco has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this ToS, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Los Angeles County, California, unless you and Choco agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Choco from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.

4.3 Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person's Claims. You agree that, by entering into this ToS, you and Choco are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.

Choco offers a mobile application and web-based tool (collectively, the “App") designed to facilitate communication and order management between commercial buyers in the food sector such as restaurants (“Buyers") and their distributor (“Distributors"). This Privacy Policy describes how Choco Communications GmbH, whose registered office is at Wrangelstraße 100, 10997 Berlin, Germany, together with its subsidiaries Atlantic Food Waste Partners LLC, Choco Communications UK Ltd, Choco Communication SAS, Choco Communications DACH GmbH and any other subsidiary that may be established or acquired thereafter ("Subsidiaries" and collectively Subsidiaries and Choco Communications GmbH "Choco") collect, use, process and share personal data in connection with the use of the App as joint controllers.

The laws applicable to processing of personal data are namely (i) EU Regulation 2016/679 ("GDPR"); (ii) GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the "UK GDPR"); (iii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR; (iv) in the UK, the Data Protection Act 2018 ("DPA"); (v) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC); and (vi) in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003; in each case, as updated, amended or replaced from time to time. The terms "data subject", "personal data", "processing", "processor" and "controller" shall have the meanings set out in the DPA.

Scope of Application

Choco provides the App and associated services to its Buyer and Distributor customers (collectively, “Customers"). The data subjects within the meaning of UK GDPR may only utilize the App or benefit from Choco’s services as the end users of these Customers (“User(s)” or “You”). When providing the App and services to our Customers, Choco processes your personal data as a processor on behalf of the relevant Customer in line with their instructions. For instance, when you send an order to a Distributor on behalf of a Buyer, we process your data on behalf of the relevant Buyer. Our Customers are responsible for complying with the privacy obligations such as informing you about use of your personal data in relation to the processing activities we perform on their behalf. Please refer to the privacy policies of the respective Customers for more information. This Privacy Policy applies exclusively to scenarios where we act as a data controller in processing the Users’ personal data.

A. Information we collect

1. Information provided by you

Account information

When creating an account, you will be asked to provide mandatory information, such as your first and last name, email address, phone number and company name. If you don’t provide this information, you will not be able to create an account to use the App. You may provide additional information in your profile, such as a profile picture and your title in the company.

Communications with Choco

You may communicate with us for different reasons. You may fill out a contact form, contact our customer support, complete a survey, participate in a user interview or interact with us in any other way. We may keep a record of these communications including any information provided during such interactions. These communications may be processed for different purposes as further described in Section B “How do we use your information”.

Transaction data

We receive transaction data when you carry out actions on our App, such as the date and time of the orders you place on behalf of a Customer, items you added to team orders or delivery checks you carry out. We mainly use transaction data to provide the functionalities of our App to our Customers.

Other information submitted by you

When using the App, you may enter, manage and edit various information. This information includes, in particular, your communications with other Users.

In order to make use of some of the App’s features, you may need to provide additional information to Choco. In those cases, you will be asked for your specific permission.
 

• Camera access: You may enable camera access to be able to upload pictures to the App directly from your phone. For this, we need your permission to access your camera and media content saved in your camera roll. This access is not mandatory for using the App, but it may make your communications and ordering process easier. This access is based on your consent, as per Article Article 6.1 (a) of UK GDPR, which you can withdraw at any time, in accordance with Article 7.3 of UK GDPR.
• Contact list access: You also have the option of adding team members to your account by adding their contact information manually or directly from the contact list on your phone. For the second option, we need your permission to access your contact list. This access is not mandatory for using the App. If you give permission, we will access the names and phone numbers in your contact list and display them to you. We’ll also check if any of your contacts are already using Choco and display this information as well.

We will continue accessing your contact list until you withdraw your permission. We do not store your contact lists on our servers. We only store the information (name and phone number) of your contacts who are already Choco users and the ones that you have invited to use Choco. If you’re a Buyer User, you can also add the contact details of your Distributor’s sales representative. The same terms above apply in that case. The access and the described processing is based on your consent, as per Article Article 6.1 (a) of UK GDPR, which you can withdraw at any time, in accordance with Article 7.3 of UK GDPR.

2. Information collected automatically

Device and Connection Data

When you visit our App, the App automatically collects certain information from your device, such as the operating system version, device type and manufacturer, access times, your IP address, your mobile carrier, configurations, browser type, information on Internet connection and including general location based on your IP address.

Usage Data

We use automated data collection tools, such as cookies, tracking pixels, and similar tools, to collect information about how you interact with our App and communications/emails. This includes information like User ID, IP address, the pages you visit and the time spent on those pages, the features you use, your commands and other statistical information relating to your use of the App. You may find more information on this in Section C on Cookies and other tracking technologies.

3. Information we collect from other sources

Information provided by other Users and/or Customers

We may obtain your contact information (such as name, business email address, business phone number, your company and title) from other Customers who want to communicate with the organization that you’re part of. We may also obtain your contact information from the Users that are in the same organization as you are and who invite you to use the App. We use this information in our capacity as a processor for our Customers for sending you communications and for onboarding you to the App on their behalf. But it’s the relevant Customer who is responsible for informing you about these activities as the controllers. When you create an account, as the provider of the App, we start processing your data as the controller in accordance with this Privacy Policy as well.

B. How do we use your information

1. To operate the App

We process your personal data for the following purposes:

• Operating, hosting and maintaining the App, including monitoring service performance, troubleshooting and debugging any malfunctions,
• Authenticating Users when they log in,
• Detecting, preventing, and responding to security incidents and to any malicious, deceptive, fraudulent or illegal activity,
• Ensuring safety, integrity and security of our App, our Users, Customers, employees and third parties.

The legal basis for the above listed processing activities is our legitimate interest within the meaning of Article 6.1(f) of UK GDPR in ensuring the functionality and error-free operation of the App and managing the use of our App.

Categories of personal data: account data, communications with Choco, transaction data, other information submitted by you, device and connection data, usage data

2. To manage the relationship with the Customer

We process your personal data for managing relationships with our Customers, such as for billing, account management and enforcing the terms of the agreement between the Customers and Choco.

The legal basis for this processing is our legitimate interest within the meaning of Article 6.1(f) of UK GDPR in managing and maintaining the relationship with our Customers.

Categories of personal data: account data, communications with Choco, transaction data, other information submitted by you, device and connection data, usage data
 

3. To support your use of the App and to communicate with you

We use your personal data to respond to your questions and requests and to provide you with customer support. We may keep a record of these communications including any information provided during such interactions. We may use this information to improve our customer support processes.

We will also use your personal data to send you technical or legal notices, updates, security messages or other messages concerning the operation of the App or administration of your or the Customer’s account. We use automatically collected information about your interactions with our communications to improve our communications with you. Some of these communications may be sent in the form of push notifications. You may disable push notifications from the settings of your mobile device.

The legal basis for this processing is our legitimate interest within the meaning of Article 6.1(f) of UK GDPR in responding to your requests and informing you about the functioning of the App.

Categories of personal data: account data, communications with Choco, transaction data, other information submitted by you, device and connection data, usage data
 

4. To improve our Services

In order to improve our App and your user experience, we use tools for the statistical recording and analysis of general usage behavior. We collect information about your in-App activity and engagement with the communications sent via our App. We generate and analyze statistical information about how our App is used. We may analyze and monitor user trends and user behavior, conduct tests for new features and perform troubleshooting activities. Where suitable, we aggregate or de-identify the information.

Legal basis is our legitimate interest in accordance with Art. 6.1 (f) of UK GDPR in improving the functions and performance of our App and ensuring its functionality.

We may contact you to ask you for your opinion about our App, to ask you to participate in user research. Legal basis for contacting you for this purpose is our legitimate interest in improving the functions of our App. Your participation in any user research or survey will be based on your consent. We may also use your communications with us, such as any feedback you may provide for improving our App.

Categories of personal data: account data, communications with Choco, transaction data, other information submitted by you, device and connection data, usage data
 

5. To comply with legal obligations and defend our rights

We may use your personal data to comply with our legal requirements, such as keeping records of payments for accounting purposes. The legal basis for this processing is Article 6.1(c) of UK GDPR. We may also process your information based on our legitimate interest within the meaning of Article 6.1(f) of UK GDPR in defending our rights.

Categories of personal data: account data, communications with Choco, transaction data, other information submitted by you, device and connection data, usage data, contact data
 

C. Providing services to our Customers

We process your personal information to provide services and functionalities of our App to our Customers as a processor. We don’t have any control over how Users utilize the App. We only process personal information on their behalf to execute their instructions. For instance, we may process your contact information for delivering you a message from a Distributor or inviting you to use the App on behalf of a Distributor. Customer admins are responsible for managing access to their organization’s account, including the modification of access rights of Users as necessary. For more information, please refer to the privacy policy of our customers.

Categories of personal data: account data, contact information, transaction data, other information submitted by you, usage data

D. Cookies and other tracking technologies

We use tracking technologies such as cookies, pixels and other similar tools to automatically collect information as you use the App or when you interact with communications we send you or communications sent by other Users via the App. The data collected via these tools are described under Section A. 2 on Information Collected Automatically.

Some of these tools collect information from the end device to enable the basic functions of our App. These are called (“Essential tools”) and are for enabling the security and stability of our App, preventing misuse and detecting malicious activity. Without these tools, we could not provide our App. Some of these tools are used for statistical collection and analysis of general user behavior based on access data to understand and research how our users interact with our App to provide, update and improve our App.

E. How we share your information

We may share your personal data with the following categories of recipients.

1. Choco Group

Choco shares infrastructure, systems, and technology with other companies owned or operated by Choco Communications GmbH (“Choco Group”). We may share personal information within Choco Group to be able to provide and improve our services and operate our business. Other companies within Choco Group act as our service providers (processors) in that case and will process your personal data in line with our instructions.

2. Our service providers

We share your personal data with our contracted service providers who assist us in providing, supporting and improving our services and App and who process your personal data on our behalf. These third party service providers include hosting providers, IT tools and services, operational services, CRM and communication tools, cybersecurity services and the tools we use for the statistical recording and analysis of general usage behavior on our App and services. You can find a list of these service providers here.

These service providers are limited (by law and by contract) in their ability to use your personal data. We will ensure that these parties are subject to privacy and security obligations consistent with this Privacy Policy and applicable laws via concluding data processing agreements with them.

3. Competent authorities and legitimate third parties

We are under a duty to disclose your personal data in order to comply with any legal obligation or lawful request by a government or law enforcement authority. Any disclosure of the personal data will be justified by the fact that the processing is necessary to fulfill a legal obligation to which we are subject in accordance with Article 6.1(c) of UK GDPR in the national legal requirements for the disclosure of data to law enforcement authorities and to other supervisory authorities.

We may disclose your personal data to third parties in order to enforce the App’s terms of use or any other agreement we executed with you or our Customers; to protect or defend our rights or the rights of third parties; to prevent any illegal activity or to respond to any legal claims. Any disclosure of the personal data is justified by the fact that we have a legitimate interest within the meaning of Article 6.1(f) of UK GDPR in protecting or defending the rights, property and safety of Choco, our Customers and third parties.

4. Corporate restructuring

In the context of the further development of our business, the structure of our company may change by changing the legal form, founding, acquiring, or transferring subsidiaries, parts of companies or components. We may share your personal data with third parties if we are involved in an actual or proposed merger, acquisition, financing, bankruptcy, sale of all or a portion of our assets or a reorganization. Reasonable and proportionate disclosure of personal data in the permissible scope is justified by the fact that we have a legitimate interest within the meaning of Article 6.1(f) of UK GDPR in adapting our corporate form to the economic and legal circumstances if necessary.
 

5. Information you share with other users

You may share your personal data (such as your name, surname and contact information) with other Users, with whom you have freely decided to communicate and/or to place your orders via the App. Just like any other communication platform, Users who are in the same chat as you may see your contact information, including the Users of the other business in your chat.

F. Data transfer to third countries

Some of the recipients may be located in counties outside of the UK, which do not provide adequate protection according to the competent supervisory authority in your country of residence.

Whenever we transfer personal data to those countries, we will take appropriate measures required by Data Protection Laws. These measures include entering into Standard Contractual Clauses with International Data Transfer Addendum or International Data Transfer Agreement which have been approved by the UK Parliament and impose higher standards on the recipients with respect to protection of personal data. If necessary, we also conduct a transfer impact assessment to make sure that there is no adverse impact on the data subject’s rights.

Where this is not possible, we base the data transfer on exceptions under Art. 49 UK GDPR, in particular your express consent or the necessity of the transfer for the fulfillment of the contract or for the implementation of pre-contractual measures. If a transfer to a third country is planned and there is no adequacy decision or suitable guarantees, it is possible and there is a risk that authorities in the respective third country (e.g. secret services) may gain access to the transferred data in order to collect and analyse it, and that the enforceability of your rights as a data subject cannot be guaranteed. When obtaining your consent via the consent banner, you will also be informed of this.

G. Your rights as a data subject

As a data subject, you have the following rights:

• Right to access the personal data we hold about you,
• Right to rectify the personal data we hold about you,
• Right to request deletion of your personal data under certain circumstances specified in the Data Protection Laws Art.17 of UK GDPR,
• Right to restrict processing of your personal data under certain circumstances specified in the Article 18 of UK GDPR,
• Right to object to processing in case the processing is based on our legitimate interests,
• Right to transfer your information to a third-party (right to data portability);
• Right not to be subject to a decision based solely on automated processing; and
• Right to withdraw your consent in case the data processing is based on your consent.

Please note that the existence of the right to withdraw your consent does not affect the lawfulness of processing before your withdrawal.

Your requests for the assertion of data protection rights and our answers to them will be kept for documentation purposes for a period of up to three (3) years and, in individual cases, for longer periods for the establishment, exercise or defense of legal claims in accordance with Article 6.1(f) of UK GDPR, which is based on our legitimate interest in defending Choco against any claims and the avoidance of fines.

If you have any questions, comments or complaints about our handling of your personal data, or if you wish to exercise your data subject rights, please contact the Choco Legal Team using the following contact details: legal@choco.com.

As a data subject you have the right to lodge a complaint with a supervisory authority if you consider that the processing of personal data relating to you infringes the UK GDPR. The data protection authority responsible for Choco's processing of personal data in the UK is the Information Commissioner's Office, on this link.

If you wish to exercise your rights in relation to personal information that Choco processes as a processor on behalf of its Customers, please direct your request to the relevant Customer.

H. Data Protection Officer and contact details

You are welcome to direct your data protection concerns to our Data Protection Officer by sending an email to the above-mentioned email address. Please note that emails to the above email address will not solely be received by our Data Protection Officer as this is a generic email for the Choco Legal Team. If you solely wish to contact our Data Protection Officer and/or if you wish to send confidential information, please refer to the Data Protection Officer in the subject line or body of your email and please ask for them to contact you directly to further discuss your data protection concerns. You can also reach out to the Data Protection Officer by using the above postal address of the data controllers (keyword: "To the attention of Data Protection Officer").

You can also reach out to the Data Protection Officer by using the below postal address (keyword: "To the attention of Choco’s Data Protection Officer"): ISiCO Datenschutz GmbH, Am Hamburger Bahnhof 4, 10557 Berlin.

 

I. Information on the Joint Controllership

Choco Communications GmbH and Choco Communications UK Ltd jointly determine the purposes and means of processing. Choco Communications GmbH will be your point of contact when you want to exercise your rights described under section E. Please contact legal@choco.com if you want more information about the essence of such agreement between the parties.

J. Storage duration

We keep the personal data we process as a controller as long as necessary to fulfill the purposes for which we processed it. After that we either delete or anonymize your data unless we are legally required to keep it for a longer period of time, or unless they are necessary for establishment, exercise or defense of legal claims. In those cases, we’ll delete such personal data after the expiration of the legal periods.

K. Security

We implement various technical, administrative and organizational measures to protect your personal data against unauthorized access and unlawful processing, alteration or destruction.

L. Hyperlink

Our App may contain hyperlinks to third-party websites. If these hyperlinks are activated, you will be redirected from our App directly to the websites of third-party service providers. You can recognize this, amongst other things, by the changing URL. We cannot accept any responsibility for the confidential handling of your data on these third-party websites, nor for their compliance with the UK GDPR, which is beyond our control. Please refer directly to those websites for information about their handling of your personal data.

M. Changes to this Privacy Policy

We always keep this privacy policy up to date. Therefore, we reserve the right to update or change it from time to time and to maintain these changes in the processing of your personal data. We will indicate the date of the most recent update in the beginning of the Privacy Policy.