FREQUENTLY ASKED QUESTIONS

‍Effective Date: 7/26/26

‍1. INTRODUCTION

These Terms of Use (“Terms”) are an agreement between you and Silver Diner Development LLC (“Silver Diner,” “we,” “us,” or “our”) governing your access to and use of (a) the websites, mobile applications, and other online properties operated by Silver Diner where these Terms are posted, including the website located at https://silverdiner.com/ and our Diner Perks mobile application (collectively, the “Sites”) and (b) all content, features, functionality, and services offered on or through the Sites, including rewards program and online ordering functionality (together with the Sites, collectively, the “Services”). The Services may include the ability to order food, beverages, and other products (collectively, "Products") for pick-up or delivery from participating Silver Diner restaurant locations (each, a "Participating Restaurant").

The Services are only available to individuals who are eighteen (18) years of age or older, with the exception that individuals ages thirteen (13) to seventeen (17) may use the Services for the limited purpose of participating in our Diner Perks Rewards Program (the "Rewards Program") as a designated Family Member on a Family Account, as those terms are defined in the Rewards Program’s Terms & Conditions (the “Rewards Terms”), and only under the supervision of a parent or legal guardian who has agreed to these Terms (collectively, the "Age and Supervision Requirements"). For avoidance of doubt, individuals under the age of thirteen (13) are prohibited from using the Services for any purpose whatsoever.

‍By (a) accepting these Terms using a mechanism made available on the Sites (such as by clicking an "I Agree" button or checking a box) or (b) otherwise accessing or using the Services in any manner (other than for the sole purpose of reviewing these Terms or other terms or policies on the Sites), you expressly represent that you (i) understand, acknowledge, and agree to be bound by these Terms and (ii) satisfy and will comply with the Age and Supervision Requirements at all times while using the Services. We would not provide the Services without the conditions in these Terms. If you later seek to repudiate these Terms or any aspect thereof, you agree that such action would constitute a breach of these Terms, prohibiting you from enforcing any aspect of the Terms and entitling us to damages resulting from your breach.

NOTICE REGARDING ARBITRATION AND DISPUTE RESOLUTION: AMONG OTHER PROVISIONS THAT AFFECT YOUR LEGAL RIGHTS, THESE TERMS CONTAIN A BINDING ARBITRATION REQUIREMENT, WHICH, SUBJECT TO LIMITED EXCEPTIONS, REQUIRES YOU AND SILVER DINER TO ARBITRATE ANY DISPUTES ON AN INDIVIDUAL BASIS AND TO WAIVE THE RIGHT TO BRING AN ACTION IN COURT, PROCEED ON A CLASS OR CONSOLIDATED BASIS, OR HAVE DISPUTES DECIDED BY A JUDGE OR JURY. PLEASE CAREFULLY REVIEW SECTION 17 BELOW.

If you are an individual using the Services on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (an “Organization”), you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms. In that case, references to “you” and “your” in these Terms refer to both you, the individual using the Sites, and to the Organization you represent.

2. ADDITIONAL TERMS

Certain areas and/or features of the Services may be subject to additional terms, conditions, rules, or guidelines (“Additional Terms”), and we may provide such Additional Terms to you via postings, pop-up notices, links, or other reasonable means. All Additional Terms are hereby incorporated by reference into these Terms. As such, any reference to the “Terms” herein includes the Additional Terms. If there is a conflict between the provisions herein and any Additional Terms, the Additional Terms shall prevail, but only to the extent of the conflict.

3. ACCOUNTS

‍Users may be required to register an account and specify a password to use certain features of our Services, including joining our rewards program [TM3][MO4] (“Account”). To create an Account, you must be at least 18 years old. You agree to (a) create only one account; (b) provide accurate, truthful, current, and complete information; (c) maintain and promptly update your account information; (d) maintain the security of your Account by not sharing your Account credentials withothers (except as authorized in connection with a Family Account, as defined in the Rewards Terms[TM5] ) and restricting access to your Authorized Devices; (e) promptly notify us if you discover or otherwise suspect any security breaches relating to the Services; and (f) take responsibility for all activities that occur under your Account and accept all risks of unauthorized access. We reserve the right, in our sole discretion, to take any and all actions we deem necessary or reasonable to maintain the security of our Services and your Account, including terminating your Account, changing your password, or requesting information to authorize transactions on your Account.

4. ORDERS FOR PRODUCTS AND SERVICES

‍a.       Ordering System

‍You may use the Sites to submit your pickup, curbside, or delivery order (“Order”) online to participating Silver Diner restaurants (each, a “Participating Restaurant”) via the Sites. You acknowledge that the images of Products and packaging displayed on the Sites may be different from the product or packaging you receive from Participating Restaurants due to your Approved Device’s display, ingredients used, lighting, and other factors. When you place an Order, you submit orders directly to a Participating Restaurant and the contract for supplying the Products will be between you and the Silver Diner restaurant that accepts your order. The restaurant that delivered the Products to you or you collect your Products from is responsible for preparing the Products and providing them to you.

b.      Prices

You acknowledge that: (i) the prices for items displayed on the Sites may differ among Participating Restaurants; and (ii) Participating Restaurants reserve the right to change such prices at any time, at their discretion. All prices displayed on the Sites are stated in United States dollars.

c.       Order Information

You may be asked to supply certain information prior to us accepting or processing your Order, including your name, your credit card number, the expiration date of your credit card, your billing address, and your delivery address. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) designated by you in connection with any Order; and that (ii) the information you supply to us is true, correct, and complete. By submitting such information, you grant us the right to use or provide the information to third parties for purposes of facilitating the completion of Orders and otherwise providing our Services to you. ‍

d.      Payment

You agree to pay in full all amounts due for your Orders, including all applicable taxes, at the time you place your Order using a valid credit card, debit card, or other payment method we accept. If payment is not received by Silver Diner from your card issuer or its agents, you agree to pay all amounts due upon demand by us. Furthermore, we reserve the right to collect any rejection or insufficient funds fee and to process any such payment by the payment method you have submitted to us.

e.       Order Acceptance & Cancellation.

Your placement of an Order—which occurs when you select “Place Order,” “Pay Now,” or a similar option at the conclusion of the online ordering process on the Sites—constitutes a request to purchase the relevant items from Silver Diner. All Orders are subject to our review and acceptance. Acceptance occurs when we provide an affirmative notification (e.g., in your Account or via email), indicating that your Order has been accepted.

We reserve the right to refuse, modify, or cancel your Order (including after acceptance) at any time and for any reason, including product or service availability, errors in the description or price of the product or service, errors in your Orders, or if fraud or an unauthorized or illegal transaction is suspected. Without limiting the preceding sentence, we reserve the right to limit quantities purchased per person, per household, or per Order. If we reject or modify an Order, we will attempt to notify you in your Account or via the information we have on file for you.

f.        Third-Party Order Fulfillment and Delivery.

You acknowledge and agree that Orders are processed and facilitated by one or more independent third-party service providers (each, a "Fulfillment Provider"), and not by Silver Diner directly. When you submit an Order on the Sites, your Order is transmitted to and processed by a Fulfillment Provider, which facilitates the completion of your Order, including by communicating your Order to the applicable Participating Restaurant and, where applicable, arranging for delivery. The delivery of Orders, where available, is likewise performed by independent third parties, which may include the Fulfillment Provider, a third-party courier service, or independent delivery personnel (collectively, "Delivery Providers").

Delivery is available only to addresses within certain geographic areas, which may change at any time, and the fact that your address falls within a delivery area does not guarantee that delivery will be available for a particular Order, location, or time. You are responsible for providing a complete and accurate delivery address, and we are not responsible for any failed, delayed, or misdelivered Order resulting from an incorrect or incomplete address.

You acknowledge and agree that Fulfillment Providers and Delivery Providers are not employees, agents, or representatives of Silver Diner, and that Silver Diner does not select, screen, supervise, train, or control them. To the maximum extent permitted by applicable law, Silver Diner is not responsible or liable for the acts, omissions, errors, delays, or failures of any Fulfillment Provider or Delivery Provider, including any failure to transmit, process, fulfill, or deliver an Order and the conduct of Delivery Providers occurring at or in connection with delivery to your home or other delivery location. Any disputes, claims, or issues relating to the processing, fulfillment, or delivery of an Order should be directed to the applicable Fulfillment Provider or Delivery Provider.

g.      Transactions Involving Alcohol

You may have the option to place Orders for alcohol Products[MO10]  in some of our locations. You must be at least 21 years old to place an Order for alcohol Products, and you agree not to place such an Order if you are under 21 years of age. We do not knowingly sell alcohol Products to any person under 21 years of age, and Orders for alcohol Products are subject to age and identity verification at the time of delivery or pickup in the form of a valid government-issued identification.  Pickup or delivery of alcohol Products may be refused if you are not 21 years of age or older, if you cannot provide valid government-issued identification, if the name on your government-issued identification does not match the name on your order, or you are visibly intoxicated. If your Order cannot be completed for one or more of the foregoing reasons, you will not be eligible for a refund, and you may be subject to a non-refundable restocking fee.

h.      Refunds.

Charges paid by you for completed and delivered orders are final and non-refundable. If you desire to seek a refund for any reason, please contact us at https://www.silverdiner.com/recovery. Silver Diner has no obligation to provide refunds but may grant them at our sole discretion.

5. REWARDS PROGRAM

Our Rewards Program is an aspect of the Services. Your participation in the Rewards Program is governed by these Terms and the Rewards Terms, which constitute Additional Terms.

6. PROHIBITED USE OF OUR SERVICES

While using the Services, you are prohibited from engaging in, and hereby represent that you will not engage in, any of the following:

                i.            conduct that threatens our relationships with our partners, customers or suppliers; ‍

               ii.            attempting to conceal or misrepresent your identity or activities in connection with the Services, including by disguising the origin of any content transmitted through the Sites;

               iii.            disclosing private or personal matters concerning any person without their permission or invading any individual’s privacy;

               iv.            disrupting the normal flow or proper functioning of the Services or otherwise acting in a manner that negatively affects other users;

               v.            transmitting through the Services any information, data, text, files, links, software, or other materials that are unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, hateful, discriminatory, or otherwise objectionable;

              vi.            using the Services to stalk, harass, abuse, mock, ridicule, intimidate, disparage, defame, threaten, defraud, or otherwise mistreat or harm any person or class of people

              vii.            sharing User Content or using the Services in a manner that is intentionally misleading, false, or otherwise inappropriate or with the purpose of harming others, regardless of whether the content or its dissemination is unlawful;

            viii.            sharing User Content or using the Services in a manner that has any risk or possibility of exploiting, harming, or endangering the health or well-being of children or other minors (“Children”), such as images of Children in sexualized costumes, poses, or a sexual fetishistic context, or which identifies, directly or indirectly, alleged victims of child sexual exploitation, or for the purpose of exploiting, harming or attempting to exploit or harm Children in any way;

             ix.            sharing User Content or using the Services in such a way that violates the intellectual property or other rights of Silver Diner, other users, or third parties;

             x.            soliciting passwords or personal information for commercial or unlawful purposes, sending spam or other direct marketing communications, or posting, transmitting, or linking to any unsolicited advertising, promotional materials, or any other forms of solicitation or commercial content

             xi.            posting or transmitting executable programming of any kind, including viruses, spyware, trojan horses, Easter eggs, or any other form of computer programming or disabling mechanism;

             xii.            using any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from the Services, including creating any frames at any other Services pertaining to any portions of the Sites; and

            xiii.            attempting to circumvent, disable, or otherwise interfere with security-related features of the Services, including those that prevent or restrict use or copying of Content or enforce limitations on use of the Services; and

            xiv.            violating or encouraging anyone to violate these Terms or any applicable local, provincial/state, national or international law.

Silver Diner has the right, but not the obligation, to monitor the Sites for the purpose of determining and enforcing compliance with these Terms. Further, we shall be free to delete, remove, modify, or refuse to post any User Content if we determine (a) that the content violates these Terms, (b) that the content is stale or off topic for the applicable portion of the Sites, or (c) that doing so is otherwise necessary or convenient in connection with our administration of the Services. 

We reserve the right to disclose any information, including your identity, Account information, and Site Activity, as we deem necessary to (a) enforce these Terms; (b) satisfy any applicable law, regulation, legal process, or governmental request; or (c) respond to claims that the Sites or your activities in connection therewith violate the rights of third parties. You hereby waive any claims related to or resulting from any action or inaction of Silver Diner with respect to (a) monitoring the Sites; (b) deleting, removing, modifying, or refusing to post any User Content; (c) determining or enforcing compliance with these Terms; or (d) cooperating with law enforcement or a governmental request concerning any matter related to the Services.

Notwithstanding the use restrictions in this Section 6, nothing in these Terms prohibits or restricts your ability to express or publish any review, performance assessment, or similar analysis (collectively, “Reviews”) about Silver Diner, its employees or agents, or its Products, to the extent that such Reviews are protected under applicable law, including any (a) “statement” protected by Cal. Civ. Code § 1670.8 or (b) “covered communication” as defined by the Consumer Review Fairness Act, 15 U.S.C.A. § 45b.

7. PRIVACY

Please read our Privacy Policy carefully to understand how we collect, use, and disclose personal information from our users.

Our Privacy Policy is hereby incorporated into these Terms by reference. Accordingly, by agreeing to these Terms, you are hereby representing to Silver Diner that you understand and accept how we collect, use, and disclose information concerning your use of the Sites, as set forth in our Privacy Policy. You understand and agree that (a) Silver Diner is justifiably relying on this representation in granting you access to the Services and (b) if you later take legal action inconsistent with this representation, this will constitute evidence that your representation was false. In that case, Silver Diner may elect to terminate these Terms, without prejudice to our ability to seek damages resulting from your breach. If you do not agree to the practices described in our Privacy Policy, you may not use the Services or provide us with any information. 

8. VIDEO CONTENT, COOKIES & SITE ACTIVITY

The Sites may contain video content, audiovisual content, or content of a like nature (collectively, “Video Content”). Video Content is provided for the purpose of enhancing the user experience on the Sites and is, therefore, provided in connection with Silver Diner’s activities in the restaurant business. Silver Diner is not in the business of renting, selling, or delivering Video Content in a commercial manner. As such, you acknowledge and agree that Silver Diner is not a “video tape service provider,” as defined in the Video Privacy Protection Act (“VPPA”), 18 U.S.C.A. § 2710 or similar state laws.

Additionally, the Sites may include online technologies and code-based tools, including cookies, pixels, web beacons, and software development kits (collectively, “Cookies”), that track and analyze information about your use of the Sites, including when you access pages containing Video Content (your “Site Activity”). Cookies may result in information about your Site Activity being transmitted from your browser to Silver Diner or to third parties, which, in turn, may result in the display of targeted advertisements on the Sites or third-party websites, services, or platforms (collectively, “External Sites”). Whether Cookies on the Sites result in your browser’s transmission of information to third parties depends on a number of factors that may be outside of our knowledge or control, including what External Sites you use, what information you have provided to External Sites, and whether and the extent to which you have limited the use of Cookies by External Sites.

You hereby acknowledge and agree that, if Cookies on the Sites result in your browser’s transmission of information to External Sites, (a) such transmissions do not constitute a “knowing disclosure” of “personally identifiable information” by Silver Diner under the VPPA and (b) you will not initiate any litigation or otherwise assert any claim against Silver Diner based, in whole or in part, on such transmissions, whether under the VPPA, the California Invasion of Privacy Act (Cal. Penal Code § 630 et seq.), or any other statute, regulation, or cause of action.   

9. THIRD-PARTY LINKS

‍We may provide on the Sites, solely as a convenience to users, links to External Sites. A description or link to an External Site does not imply our endorsement of the applicable third-party service provider. We have no control over, and assume no responsibility for, the content, terms of use, privacy policies, or practices of any External Sites. In addition, Silver Diner will not and cannot censor or edit the content of any External Site. You agree that your use of External Sites, including your use of or reliance on any content, information, data, advertising, products, or other materials on or available through such External Sites, is at your own risk and is subject to the terms and conditions of use applicable to such sites.

10. SOCIAL MEDIA INTEGRATION

We may offer opportunities for you to transmit content via third-party social networking websites and products. Any use of third-party social networking features is subject to the terms of use of the applicable third-party website or product and not these Terms, unless you are notified otherwise.

11. OUR INTELLECTUAL PROPERTY RIGHTS

a.       Content

All contents of the Sites, including all names, logos, text, designs, graphics, Trademarks, characters, interfaces, code, software, images, sounds, videos, photographs and other content appearing in or on the Sites, and the design, selection, and arrangement thereof (collectively, the “Content”), is the property of Silver Diner and/or its licensors, and such Content may be protected by copyright, trademark, patent, or other proprietary rights and laws. You do not acquire any right, title, or interest in any Content by accessing or using the Service. Any rights not expressly granted herein are reserved and retained by Silver Diner and its licensors. As the Content is a component of the Sites and Services, any reference to the “Sites” or the “Services” herein includes the Content.  

b.      License Granted by Silver Diner

Subject to your compliance with these Terms, Silver Diner is providing you with access to the Services pursuant to a limited, non-exclusive, non-transferable, non-sub licensable license (the “License”). The License is available to you unless and until you or we terminate these Terms, we otherwise suspend or terminate your access to the Services, or you are barred from using the Services by applicable law.

Under the License, you may access and use the Services solely for non-commercial purposes and only in the following limited ways: (a) you may access and browse the Sites, and use the features made available to you, using a device that you own or are authorized to use (an “AuthorizedDevice”); (b) you may download the Content from the Sites to an Authorized Device and print out a hard copy, provided that you do not modify the Content in any way, do not remove or alter any copyright or other legal notice; (c) you may install a copy of our Diner Perks mobile application and any mobile applications that we make available (collectively, the “Apps”) on an Authorized Device; and (d) your Authorized Device may temporarily store copies of the Content incidental to your use of the Sites. Except as expressly authorized in writing by Silver Diner or permitted under applicable law, you may not reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, create derivative works based (in whole or in part), or otherwise use or exploit any part of the Service.

c.       Trademarks

The Content includes the trademarks, service marks, logos, slogans, trade names, and trade dress used on the Sites and otherwise in connection with the Services (the “Trademarks”). The absence of a trademark notice or symbol indicating the registration or ownership of the Trademark does not constitute a waiver of our or our licensors’ trademark or other rights. These Terms do not grant you any rights to use the Trademarks. Under no circumstances are you permitted to use the Trademarks in a manner that creates a likelihood of consumer confusion.  

d.      Litigation Purposes.

The Services are intended for users genuinely interested in our Products and Content. Under no circumstances may the Services be used for the purpose of, or with the intention of, initiating litigation or arbitration, including using the Services in order to trigger or induce an alleged violation of any law (“Litigation Purposes”). Use of the Services for Litigation Purposes is strictly prohibited, exceeds the parameters of the License, and, as such, constitutes a breach by you of these Terms. In such circumstances, we may elect to terminate these Terms, without prejudice to our ability to seek damages, including attorneys’ fees, resulting from your breach.

12. CONTENT SUBMITTED BY YOU

a.       User Content

The Services may allow users submit, post, display, publish, or transmit (collectively, “share”) information or content on, to, or through our Services (“User Content”). User Content has not necessarily been reviewed or approved by Silver Diner and we, therefore, make no representations or warranties as to the accuracy, reliability, completeness, timeliness, or any other aspect of any User Content. Any views or opinions expressed in User Content belong to the users who shared the content and not to Silver Diner. Your reliance on any User Content is done entirely at your own risk. You understand and agree that we are not responsible for, and shall have no liability related to, any User Content, including your reliance on such content.

b.      License Granted by You.

You retain ownership of any intellectual property rights in the User Content that you share via the Services. However, by sharing User Content, you grant Silver Diner and its related companies, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, and their respective retail partners, marketing or public relations agencies, and other affiliates (“Licensed Parties”) a non-exclusive, fully-paid, royalty-free, irrevocable, transferable, perpetual, worldwide, fully sublicensable and unrestricted right and license to (a) use, modify, publicly perform, publicly display, reproduce, create derivative works from, distribute, and/or otherwise use such User Content in any manner, commercial or otherwise; and (b) use your name in connection with your User Content when exercising the foregoing rights (collectively, the “User Content License”). We may sublicense the rights granted under the User Content License through multiple tiers of sublicenses.

You represent and warrant that (a) you own your User Content or (b) you have obtained all rights and permissions needed to grant the User Content License to Silver Diner and, if the latter, that you have not altered or deleted any legal notice or copyright information attached to the User Content by the owner of such content. You acknowledge that you are not entitled to any monetary payment or other consideration in connection with our use of your User Content pursuant to the User Content License.

c.       Ideas.

You acknowledge and agree that, pursuant to the User Content License, if you share User Content containing any ideas, concepts, know-how, proposals, techniques, or suggestions, you agree that: (i) we are free to use such User Content for any purpose without any compensation or attribution to you, (ii) such User Content will be deemed not to be confidential or proprietary, (iii) we may have something similar already under consideration or in development, and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances. ACCORDINGLY, PLEASE DO NOT SEND US ANY USER CONTENT THAT YOU WISH TO KEEP PRIVATE OR PROPRIETARY OR FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION.

d.      Private Submissions. ‍

Notwithstanding anything to the contrary in these Terms, the User Content License does not apply to personal information included in User Content that is not intended for public display (“Private Submissions”), such as personal information submitted when creating an Account. Personal information included in Private Submissions shall be treated in accordance with our Privacy Policy. However, personal information included in User Content that is intended for public display on the Sites is licensed to us pursuant to the User Content License. 

13. TEXT MESSAGE PROGRAM

By consenting to Silver Diner’s text message notification program (the “Text Message Program”) on the Sites or via other subscription tools we provide, you are agreeing to receive recurring text messages regarding marketing offers, transactional matters (including related to your Orders and Account), and any other matters related to the Services, even if your mobile number is registered on a state or federal do-not-call list. Message frequency varies. Consent to the Text Message Program is not a condition of any purchase from us.

If you wish to stop from receiving text messages from Silver Diner, reply with STOP to any text message sent from us or use the unsubscribe link provided to you within our commercial email messages. You understand and agree that alternate methods of opting out, such as using different words or requests, will not be considered a reasonable means of opting out and may not be honored. We do not charge for the Text Message Program, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. For any questions, please text HELP in response to any of our messages or reach out to us at the contact information provided in these Terms.  

‍
We have the right to modify any telephone number or short code we use to operate the Text Message Program at any time. We will attempt to notify you on such occasions. You agree that any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages. To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Text Message Program, any errors in such information, and/or your reliance on the information or Text Message Program. For avoidance of doubt, the Text Message Program is a component of the Services. As such, your participation in the Text Message Program is subject to all provisions of these Terms (i.e., not only this Section 13.

14.  DISCLAIMER OF WARRANTIES

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING AVAILABILITY, ACCURACY, OR USEFULNESS, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS OR IMPLIED. WITHOUT LIMITING THE PRECEDING SETNENCE: WE DO NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED, AND WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET USERS’ OR CUSTOMERS’ REQUIREMENTS.

FURTHER, SILVER DINER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES REGARDING: (A) ANY PRODUCTS ORDERED VIA THE SERVICES AND (B) THE SERVICES PROVIDED BY ANY FULFILLMENT PROVIDER OR DELIVERY PROVIDER, INCLUDING ALL ORDER PROCESSING, FULFILLMENT, OR DELIVERY SERVICES PERFORMED BY SUCH PARTIES, ALL OF WHICH ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NO ORAL OR WRITTEN INFORMATION PROVIDED BY SILVER DINER, A PARTICIPATING RESTAURANT, A FULFILLMENT PROVIDER, A DELIVERY PROVIDER, OR ANY OF THEIR EMPLOYEES OR REPRESENTATIVES SHALL CONSTITUTE A WARRANTY MADE BY SILVER DINER AS TO THE SERVICES.

SOME STATES DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE EXCLUSIONS IN THIS SECTION 14 MIGHT NOT APPLY TO YOU. NOTHING IN THESE TERMS SEEKS TO EXCLUDE ANY WARRANTIES THAT CANNOT BE EXCLUDED BY APPLICABLE LAW. YOU AGREE, HOWEVER, THAT THE TERMS OF THIS SECTION 14 SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

15. LIMITATION OF LIABILITY

You agree that SILVER DINER and its parents, subsidiaries, affiliates, successors, assigns, suppliers, and licensors, and each of their officers, shareholders, managers, employees, agents, directors, and licensees (collectively, the “Released Parties”) SHALL NOT BE LIABLE FOR ANY of the following types of DAMAGES should they arise in connection with YOUR USE OF OR INABILITY TO USE the SERVICES or the Products: (a) indirect, incidental, special, punitive, consequential, statutory, or exemplary damages; (b) loss of profits, revenue, business, goodwill, use, or data, in all cases whether direct or indirect; (c) damages, including for any delay or failure in performance, arising from causes beyond the reasonable control of the Released Parties; (d) damages arising from the conduct of other users of the Services or their User Content; (e) damages relating to the delay, failure, interruption, disclosure, or corruption of any data or information transmitted in connection with the Services; or (f) damages arising from the conduct or performance of Fulfillment Providers or Delivery Providers.

IN NO EVENT SHALL THE COLLECTIVE LIABILITY OF THE RELEASED PARTIES IN CONNECTION WITH ANY DISPUTE EXCEED THE GREATER OF (a) $250 USD or (b) the total amount paid by you to Silver Diner in connection with Orders placed through the Services in the twelve (12) months preceding the date on which your claim arose (or, if the Dispute involves multiple claims, the date on which the first such claim arose). ‍

The Terms of this Section 15 shall apply to the fullest extent permitted by applicable law, regardless of the form of action, and even if any remedy fails of its essential purpose. You acknowledge and agree that the limitations of liability set forth in this Section 15 are fundamental elements of the basis of the bargain between you and Silver Diner, and that we would not be able to provide the SERVICES or any Products without such limitations.

SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN DAMAGES. THEREFORE, NOTWTIHSTANDING ANY OTHER PROVISION IN THIS SECTION 15, SOME OF THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION 15 MIGHT NOT APPLY TO YOU. NOTHING IN THESE TERMS SEEKS TO EXCLUDE OR LIMIT ANY DAMAGES OR LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. YOU AGREE, HOWEVER, THAT THE TERMS OF THIS SECTION 15 SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

16. INDEMNITY

You agree to defend, indemnify, and hold harmless the Released Parties from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising directly or indirectly out of or from (i) your breach of any provision of these Terms; (ii) any User Content that you share or your interactions with other users of the Services; (iii) your violation of any law or the rights of any third party.

The Released Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with reasonable requests of such parties in the defense and settlement of such matter. If a Released Party assumes defense and control of any such matter, this shall not relieve you of your indemnification obligations. You agree never to settle any matter for which your indemnification is required absent our prior written consent.

Separately, if you initiate, or threaten to initiate, any litigation, arbitration, or otherwise assert any claim against the Released Parties that is based or relies, in whole or in part, upon a repudiation or breach of any promises, representations, warranties, agreements, or consents that you have made or provided pursuant to these Terms (collectively “Prohibited Legal Actions”), you agree to indemnify the Released Parties from and against any liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to the Prohibited Legal Action or your threat of the same.

17. DISPUTE, ARBITRATION AND CLASS ACTION WAIVER[TM13]

PLEASE READ THIS SECTION CAREFULLY – IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

If there is any controversy, claim, action, or dispute between you and Silver Diner arising out of or related in any way to (a) your use of the Services, including any Products ordered through the Services, and any Order processing, fulfillment, or delivery; or (b) the breach, enforcement, interpretation, or validity of these Terms or any part of them (each, a “Dispute”), you and Silver Diner hereby agree to resolve the Dispute through the dispute resolution procedures set forth in this Section 17, even if the Dispute arose prior to the Effective Date of these Terms. 

a.      Informal Dispute Resolution

You and Silver Diner agree to first attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve the Dispute informally. The party with the complaint (the “Complaining Party”) shall send written notice to the other party (the “Receiving Party”) describing the facts and circumstances of the Dispute (a “Dispute Notice”). 

All Dispute Notices must: (a) be signed by the Complaining Party; (b) include the Complaining Party’s name, physical address, and email address; (c) describe with specificity the nature and basis of the Dispute in a manner sufficient for the Receiving Party to evaluate the merits of the Complaining Party’s individualized claim, and (d) set forth the alleged damage and harm suffered and the specific relief sought with a calculation for it. Each Dispute Notice is limited to a single Dispute between you and Silver Diner. As such, your Dispute and those of others may not be combined into a single Dispute Notice.  

Dispute Notices shall be sent as follows:

‍ To Silver Diner: You must send any Dispute Notice (a) Silver Diner Development LLC, 12276 Rockville Pike, Rockville, Maryland, 20852 and (b) by email to communityrelations@silverdiner.com.

‍ To You: We will send notice by (a) first-class or certified mail to the physical address we have on file for you (if any) and (b) by email to the email address we have on file for you (if any). If we do not have any address on file for you, or if we are, for any reason, unable to provide notice via the contact information on file, we reserve the right to provide notice by other reasonable means.

You and Silver Diner will attempt to resolve the Dispute through informal negotiation within sixty (60) days beginning on the date that a valid Dispute Notice is sent (the “Informal Negotiation Period”). During the Informal Negotiation Period, you and Silver Diner are required to conduct an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the Dispute between you and Silver Diner (the “Conference”). If you are represented by counsel, your counsel may participate in the Conference, but you will also need to participate. Silver Diner will participate in the Conference through one or more representatives, which may include our counsel.  

Both you and Silver Diner agree that the foregoing dispute resolution procedure (the “Informal Resolution Process”) is a condition precedent that must be satisfied before initiating any arbitration or litigation against the other party. If any aspect or requirement of the Informal Dispute Resolution Procedure has not been completed, the parties agree that (a) a court of competent jurisdiction can enjoin the filing or prosecution of any arbitration or litigation and (b) unless prohibited by law, no arbitration administrator shall administer any arbitration or demand fees in connection with the Dispute.  ‍

b.      Individual Arbitration

If any dispute cannot be resolved through the Informal Resolution Process, you and Silver Diner agree that such dispute shall be decided exclusively by binding arbitration on an individual basis. Arbitration on an individual basis means that neither party will have, and you and Silver Diner each hereby waive, the right for a judge or jury to decide its claims, and that neither party is permitted to proceed in a class, consolidated, or representative capacity. Other rights that you and we would have in court will not be available or will be more limited in arbitration, including discovery and appeal rights.

Any such Disputes shall be exclusively submitted to JAMS (www.jamsadr.com) for binding arbitration under its rules then in effect, as modified by these Terms, before one arbitrator to be mutually agreed upon by both parties (a Dispute submitted to JAMS for arbitration being a “Demand for Arbitration”). The arbitration shall be conducted in accordance with the JAMS Consumer Arbitration Minimum Standards (the “Minimum Standards”) if, and only if, it is determined by JAMS or the arbitrator that the Minimum Standards are applicable to the Dispute. The Minimum Standards are available at www.jamsadr.com/consumer-minimum-standards. The location of any hearings will be determined by the applicable JAMS rules, provided that if the claim is for $5,000 or less, you may choose to (a) have the arbitration conducted solely on the basis of the documents submitted to the arbitrator or (b) hold a hearing by teleconference or videoconference.

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any Dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms are void or voidable. You and Silver Diner agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this Section 17 or the arbitrability of any claim or counterclaim. The award rendered by the arbitrator may be confirmed and enforced in a court of competent jurisdiction. 

c.       Mass Arbitration

If you or Silver Diner files a Demand for Arbitration that is one of twenty-five (25) or more similar Demands for Arbitration filed by parties represented by the same law firm or law firms acting in coordination (a “Mass Arbitration”), the arbitration of the Dispute, and all other Disputes constituting the Mass Arbitration, shall be conducted in accordance with the JAMS Mass Arbitration Procedures and Guidelines, including the JAMS Mass Arbitration Fee Schedule (the “Mass Arbitration Rules”). The Mass Arbitration Rules are available at www.jamsadr.com/mass-arbitration-procedures.  

Notwithstanding anything to the contrary in these Terms, you and Silver Diner agree that, in the event of a Mass Arbitration, any issues arising under or relating to (a) the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms are void or voidable or (b) the jurisdiction of the arbitrator, including any objections with respect to the existence, scope, or validity of this Section 17 or the arbitrability of any claim or counterclaim, shall be decided by a court of competent jurisdiction.   

d.      Exceptions

In lieu of the dispute resolution procedures in Section 17(a)-(c), you or Silver Diner may (a) bring a claim or elect to resolve a Dispute in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply, so long as the action is litigated exclusively in small claims court and is not removed or appealed to a court of general jurisdiction; and (b) file a claim in court to (i) enjoin the infringement or other misuse of its intellectual property rights or (ii) seek a declaration that the other party is in breach of these Terms. You and Silver Diner agree that, to the extent permitted by applicable law, any claims referenced in the preceding sentence must be brought and maintained on an individual basis.

18. CHOICE OF LAW & FORUM

a.      Choice of Law

These Terms and your use of the Services shall be governed by the laws of the United States and the State of Maryland, without regard to principles of conflict of laws. Any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act, 9 U.S.C., Secs. 1-16.

b.      Choice of Forum

Except for claims properly lodged in a small claims court in the United States, any Disputes not subject to arbitration pursuant to Section 17 shall be resolved by a court located in Montgomery County in the State of Maryland, and you hereby agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

19. COPYRIGHT INFRINGEMENT NOTICES ‍

It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”). If you believe that material located on or linked to by us violates your copyright, you are encouraged to notify us in accordance with the Digital Millennium Copyright Act. To do so, please send an email to marketingteam@silverdiner.com with the Subject Line “DMCA Notice”, and include the following:

                  i.            Identify the copyrighted work that you claim has been infringed;

‍ ‍                ii.            Identify the material or link on our Services that you claim is infringing your copyrighted work;

‍ ‍                iii.            Provide your full legal name, company affiliation, mailing address, telephone number, and email address; and

‍ ‍               iv.            Include in the body of your notice the following statement, followed by your electronic or physical signature: “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”

‍We will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. We will terminate our user’s access to and use of our Services if, under appropriate circumstances, the alleged user is determined to be a repeat infringer of the copyrights or other intellectual property rights of Silver Diner or others.

20. TERMINATION

The Terms shall remain in effect until terminated by you or us. You may terminate these Terms by providing written notice of termination to us, including your detailed contact information and any Account information, using the method listed in Section 23.  In addition to any right or remedy that may be available to us under applicable law, we may terminate these Terms, or suspend, limit, or terminate your access to the Services, at any time (a) if we believe that you have violated these Terms; (b) if we stop providing the Services or any material component thereof, or (c) as we believe necessary to comply with applicable law.

Upon termination of these Terms (whether by you or Silver Diner), or if we otherwise terminate your access to the Services, (i) you must destroy any copies of the Content you obtained from the Services; (ii) you must immediately cease all use of and access to the Services; (iii) we may delete your Account and all associated data; (iv) except as expressly provided otherwise by Silver Diner, we will not refund any amounts that you have already paid to us.  Notwithstanding the preceding sentence, if you voluntarily terminate these Terms, and you are not barred from using the Services by Silver Diner or applicable law, you are permitted to resume use of the Services at a later date. You agree that any such resumed use of the Services constitutes your renewed acceptance of the then-current version of these Terms. 

By contrast, if we terminate these Terms, or otherwise terminate your use of the Services, you shall not attempt to use that Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur. ‍

The following provisions shall survive the termination of these Terms: Sections 1, 2, 7, 8, 11 (excluding the License), 12, 13, 14, 15, 16, 17, 18, and 21, as well as any other provisions of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms.

21.  MISCELLANEOUS

a.       No Waiver

The failure by you or Silver Diner to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

b.      Severability

If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect

c.       Assignment

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Silver Diner without restriction.

d.      Entire Agreement

These Terms reflect the entire agreement between the parties related to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties.

e.       Notices and Electronic Communications.

When you visit our Services, or send e-mails or text messages to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail, text message, push notifications services or by posting notices on our Sites. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

f.        Interpretation ‍

In these Terms, the words “include,” “includes,” and “including” are used in an illustrative sense and shall be construed as if followed by “without limitation,” and the term “or” shall not be exclusive. Titles and headings to sections herein are included for convenience only and are not intended to affect the meaning or interpretation of these Terms. Any limited or specific disclaimers or limitations of liability found in these Terms shall not limit the effect, force, or breadth of any more general disclaimers or limitations of liability in these Terms. When these Terms refer to a decision or action that will or may be made or taken by Silver Diner, such decision or action shall be made, taken, or refrained from in our sole discretion and judgment.

g.      No Relationship

These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and Silver Diner.

22.  CHANGES TO THESE TERMS ‍

We reserve the right to modify these Terms at any time, at our sole discretion. If we modify these Terms, we will provide notice to you by updating the “Last Updated” above. For material changes, we will seek to supplement such notice by email, a notice on the Sites, or other reasonable means. Nonetheless, we recommend checking the “Effective Date” at the top of this page whenever you use the Services to see if these Terms have been revised.

When changes are made to these Terms, they will become immediately effective when published on the Sites unless stated otherwise by us. Your continued access and use of the Services following any such changes constitutes your acceptance of and agreement to be bound by the Terms as modified. Any proposed or attempted modification of these Terms by you will have no effect unless agreed to in writing by Silver Diner.

23. CONTACT US

If you have any questions about these Terms, your account or an order you have placed through the Service, please email us at communityrelations@silverdiner.com or mail to Silver Diner Development LLC, 12276 Rockville Pike, Rockville, Maryland, 20852.‍ ‍