Terms & Conditions
Effective: November 28, 2022
Tasty Points Inc (doing business as the brand name Foodjee) and its subsidiaries and affiliates("Foodjee," "we," "our," or "us") own and operate certain websites, including related subdomains;our mobile, tablet and other smart device applications; application program interfaces; in-storekiosks or other online services; other tools, technology and programs (collectively, the "Platform")and all associated services (collectively, the "Services"); in each case, that reference andincorporate these Terms of Service (or "this Agreement").
This Agreement constitutes a contract between you and us that governs your access and use ofthe Platform and Services. What does that mean? It means that by accessing and/or using thePlatform or our Services, or by clicking a button or checking a box marked "I Agree" (or somethingsimilar), you agree to all the terms and conditions of this Agreement. If you do not agree, do notaccess and/or use the Platform or Services. As used in this Agreement, "you" means any visitor,user, or other person who accesses our Platform or Services, whether or not such personregistered for an Account (as defined below). Unless otherwise agreed by Foodjee in a separatewritten agreement with you or your authorized representative, the Platform is made availablesolely for your personal, non-commercial use.
Foodjee is a virtual marketplace Platform that connects hungry diners with third-party serviceproviders, including local merchants and independent delivery service providers. You may orderfood through the Platform to be delivered from particular merchants, including their authorizedlicensees and franchisees, or other purveyors of food in cities throughout the United States andother territories where Foodjee provides such Services (collectively, the "Merchants").
In addition, Foodjee wants you to be ENTERTAINED when you order food and while you wait foryour food so we provide all sorts of entertainment including our signature Trivia Contests andTrivia Entertainment Content ("Trivia") and we encourage you to use our service by offering apoint system where you can earn points by ordering your food and by participating in our Triviaprograms.
Foodjee is not a restaurant or food preparation entity. The Merchants available on our Platformoperate independently of Foodjee. Merchants are required to comply with federal, state, and locallaws, rules, regulations, and standards pertaining to the preparation, sale, and marketing of food,including, without limitation, food preparation and safety and menu disclosure. Foodjee is notliable or responsible for Merchants' food preparation or safety and does not verify their compliancewith all applicable laws. In addition, Foodjee does not guarantee the quality of what the Merchantssell, nor does it guarantee the services provided by them, including, without limitation, in thosecases where they provide the delivery services or engage another third-party delivery service.Foodjee does not independently verify, and is not liable for, representations made by Merchantsregarding their food, including, without limitation, any menu- or Merchant-level descriptors,disclosures, photographs or images displayed through the Platform reflecting the food preparedby the Merchants and/or delivered by Delivery Partners (defined below). By accessing thePlatform, you agree and acknowledge that Merchants are solely responsible for, and Foodjeeshall not be liable or responsible for, the services provided to you by any Merchant or anysubcontractor of any Merchant, nor shall Foodjee be responsible for any acts, omissions, errorsor misrepresentations made by any Merchant or any subcontractor of any Merchant.
Foodjee is not a delivery company or a common carrier. Some deliveries are provided byFoodjee's network of independent delivery service providers ("Delivery Partners"). DeliveryPartners are not actual agents, apparent agents, ostensible agents, or employees of Foodjee inany way. Rather, Delivery Partners have entered into agreements with Foodjee which requirethem to comply with all applicable federal, state, and local laws, rules and regulations, including,without limitation, traffic laws, requirements of the applicable motor vehicle agency, and applicableinsurance requirements. By accessing the Platform, you agree and acknowledge that DeliveryPartners are solely responsible for, and Foodjee shall not be liable or responsible for, the deliveryservices provided to you by any Delivery Partner or any subcontractors of Delivery Partners, orany acts, omissions, errors or misrepresentations made by any Delivery Partner.
You may only create and hold one account on each of the separately branded properties on thePlatforms (each, an "Account") for your personal use. You may have another Account if you areusing the Platform for business purposes, including as part of an enterprise Account, pursuant toa separate agreement with Foodjee. In consideration of the use of the Platform and the Services,you agree that you are able to create a binding legal obligation with Foodjee, and you also agreeto: (a) provide true, accurate, current, and complete information about yourself, and (b) maintainand promptly update the personal information you provide to keep it true, accurate, current, andcomplete.
The Platform may permit you to use the Services without an Account or without logging in to yourAccount (e.g., on our in-store kiosks, through our assisted phone ordering feature, or as a guestwith our group order feature). If you use the Service in this manner, we may create an Accountfor you based on the information you provide to us in connection with the transaction (e.g., yourpayment information, name, phone number, email address, and other transaction information). Ifyou are a minor in the jurisdiction in which you reside (generally under the age of 18), you musthave the permission of, and be directly supervised by, your parent or legal guardian to use thePlatform, and your parent or legal guardian must read and agree to this Agreement on your behalfprior to your using the Platform. Notwithstanding the foregoing, you are not authorized to use thePlatform or otherwise access the Services if you are under the age of 18. If you are using thePlatform on behalf of an entity, organization, or company, you represent and warrant that youhave the authority to bind that organization to this Agreement and you agree to be bound by thisAgreement on behalf of that entity, organization, or company. If you provide any information thatis untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid orexpired payment method on file, or if Foodjee has reasonable grounds to suspect that anyinformation you provide is untrue, inaccurate, not current or incomplete, or if we believe that youhave breached this Agreement, Foodjee has the right to immediately block your current or futureuse of the Platform and/or the Services (or any portion thereof) and/or terminate this Agreementwith you. If your Account is terminated for any or no reason, you may forfeit any pending, current,or future account credits, or other promotional offers, and any other forms of unredeemed valuein or associated with your Account without prior notice to you.
You are responsible for maintaining the confidentiality and security of your Account including yourpassword and, if applicable, any password for Facebook, Google, or other third-party login. Youare also responsible for all activities or any other actions that occur under or that are taken inconnection with your Account. You agree to: (a) immediately notify Foodjee of any known orsuspected unauthorized use(s) of your password or Account, or any known or suspected breachof security, including, without limitation, loss, theft, or unauthorized disclosure of your passwordor credit card information; and (b) ensure that you exit from your Account at the end of eachsession. Foodjee will not be liable for any injury, loss, or damage of any kind arising from orrelating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someoneelse who is using your Account and/or password.
The Platform enables registered users to earn points when you order from eligible and/orparticipating Merchants ("Points"), and to redeem Points that can be used to place future ordersand/or deliveries on the Platform ("Loyalty Program"). Earning Points may be based on a numberof factors, including but not limited to, the monetary value of each completed order, and thefrequency of completed orders. These Loyalty Program Terms ("Loyalty Terms") form a part ofFoodjee's Terms of Service. In return for accessing the Platform and participating in the LoyaltyProgram, registered users agree to be bound by these Loyalty Terms without limitation orqualification. Registered users agree that participation in the Loyalty Program is at their own risk.If you object to any of these Loyalty Terms, or modifications thereof, discontinue use of the LoyaltyProgram.
I. Eligibility and Enrollment
Registered users must have a valid Foodjee Account, in accordance with the Platform's Terms ofService, and a valid payment method on file in order to participate in the Loyalty Program. Uponcompleting the first eligible order in the Platform, registered users will automatically be enrolledinto the Loyalty Program and can begin earning Points. Registered users agree that anyinformation associated with their Foodjee Account is accurate and complete. In the event aregistered user uses another individual's name or payment method, or violates any other term orcondition of the Platform, Foodjee reserves the right to terminate the registered user's Accountand revoke access to the Loyalty Program indefinitely.
II. Foodjee Points
For every dollar ($1 USD) spent in connection with an order or food delivery on the Platform,registered users will earn 1% ($0.01cent equal to 4 points) in reward points (Foodjee Points). Thevalue of each (1) point earned is equal to $0.0025. In other words, $0.0025 USD is equal to one(1) point. Registered users can view their current Points (how many Points they have successfullyaccrued) in the Platform.
Points accrued may also be dependent on the registered user's frequency of completed order onthe Platform as follows:
1-2 orders per week, will benefit from a 1% return in points on the value of the order(s).
3-4 orders per week, will benefit from a 1.5% return in points on the value of the orders.
5+ orders per week, will benefit from a 2% return in points on the value of orders.
|Example Loyalty Point Conversion Chart|
|Orders Per Week||% of Return in Points||Points Earned||Dollar Value of Points (based on $10 purchase)|
Points will not accrue for any cancelled orders, whether the cancellation was initiated by theregistered user, Merchant, or Delivery Partner.
III. Redeeming Points
Points will be applied towards an order subtotal, before applicable fees including but not limitedto taxes, service fees, and delivery fees. Points accrued on the Platform can only be redeemedfor future orders and cannot be applied towards past and/or completed orders. Registered usersmay not transfer, sell, or redeem Points for cash value.
IV. Additional Terms & Restrictions
If your access to the Loyalty Program is revoked, all accrued Points will be forfeited. Foodjee alsoreserves the right to revoke future access to the Loyalty Program. Foodjee reserves the right, inits sole discretion to (i) suspend or revoke access to the Platform and/or the Loyalty Program, (ii)refuse to honor your Points or redemption of Points, and or (iii) withhold or deduct Points with orwithout notice should Foodjee, in its sole judgement determine that you have violated theseLoyalty Terms. Foodjee has no obligation to refund, return, or credit any un-redeemed pointsfollowing the suspension or termination of a registered user's Account. In addition, Foodjee makesno representation or warranty regarding the Points, the Loyalty Program, or any aspect thereof.
Foodjee reserves the right to modify these Loyalty Terms, in whole or in part, at any time in itssole discretion. Modifications will be effective immediately upon publishing the Loyalty Terms.Foodjee is not obligated to send registered users notice of such modifications. Furthermore,Foodjee reserves the right to modify or discontinue the Loyalty Program at any time. In the eventof termination of the Loyalty Program, registered users may not claim or claim a substitute or cashvalue for unredeemed Points. If there is inconsistency with the Loyalty Program and/or LoyaltyTerms and Foodjee's Terms of Service, the Loyalty Terms shall govern solely with respect to theLoyalty Program.
OUR ALCOHOLIC BEVERAGES POLICY
Some jurisdictions permit the ordering and delivery of alcoholic beverages. In such jurisdictions,if you place an order that includes any alcoholic beverage, you represent and warrant that youare at least 21 years of age. Upon delivery or pickup, as applicable, you shall present agovernment-issued identification card, evidencing your age, consistent with applicable legalrequirements. The Delivery Partner may electronically scan the identification card of the individualreceiving the order to confirm that the recipient is at least 21 years of age and the delivery maybe completed. You also agree that our Delivery Partners may withhold delivery of the alcoholicbeverages if you appear or the recipient of the delivery appears intoxicated when receivingdelivery of such products. If you do not comply with these terms, you agree that the alcoholicbeverage(s) will not be released to you, you may forfeit the cost of such beverages, and you maybe responsible for restocking fees.
PAYMENT AND OUR CREDIT POLICY
Certain features of the Platform, including, without limitation, the placing or receipt of orders, mayrequire you to make certain payments, including commissions or other fees. When paid by you,these payments are final and non-refundable, unless otherwise determined by Foodjee. Foodjee,in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way ofexample, in the event of an error with your order or in the amounts you were charged.
Foodjee will charge, and you authorize Foodjee to charge, the payment method you specify atthe time of purchase. If you pay any amounts with a credit card, Foodjee may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card isvalid and has credit available for your intended purchase.
Please note, you are unable to complete checkout with only gift card information. In all events,you are required to provide another form of payment to submit an order, even if this paymentmethod is not charged.
Foodjee reserves the right to establish, remove, and/or revise prices, fees, taxes, and/orsurcharges for any or all services or goods obtained through the use of the Services at any time,and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges intothe prices listed for Merchant food and beverage items. You understand that the prices for menuitems displayed through the Services may differ from the prices offered or published by Merchantsfor the same menu items, whether offered by the Merchant directly or on third-party websites. Youalso understand that such prices may not be the lowest prices at which the menu items are sold.
For certain transactions, the subtotals shown at checkout are estimates that may be higher orlower than the total amount due. Regardless of the cause, Foodjee reserves the right to chargethe final price after checkout, including without limitation all applicable transaction taxes. Foodjeemay also, in its sole discretion, make other promotional offers with different features and differentrates available to any or all of our users. Unless made available to you, these promotional offerswill have no bearing on your obligation to pay the amounts charged.
The provider of Services is set forth herein. If you are a California resident, in accordance withCal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of theDivision of Consumer Services of the California Department of Consumer Affairs by contactingthem in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephoneat (800) 952-5210 or (916) 445-1254.
OUR MATERIALS AND LICENSE TO YOU
With the exception of Your Content (defined below), the Platform and everything on it, including,without limitation, text, photos, videos, graphics and software, (collectively, the "Materials") isowned by or licensed to Foodjee. The Platform and the Materials are protected by copyright,trademark, trade dress, domain name, patent, trade secret, international treaties, and/or otherintellectual or proprietary rights and laws of the United States and other countries. Except asotherwise indicated on the Platform and except for the intellectual property of other companiesthat are displayed on the Platform, all intellectual property, such as trademarks, service marks,logos, trade dress, and trade names are proprietary to Foodjee. Accordingly, you are notauthorized to download, remove, transmit, alter, reproduce, modify, distribute, exploit, sell, lease,obscure, decompile, reverse engineer, or disassemble, any content or any trademark or copyrightnotice from the Platform, including, without limitation, the Materials. If you do any of theaforementioned, Foodjee will not be responsible in any way for any damage to your computersystem or loss of data that results from such download. Please also be advised that Foodjeeenforces its intellectual property rights to the fullest extent of the law.
Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Platform for yourpersonal and noncommercial use, solely as expressly permitted by this Agreement and subjectto all the terms and conditions of this Agreement, all applicable intellectual property laws, and anyAdditional Terms (as defined below) contained on the Platform. Any other use of the Platform isstrictly prohibited. Nothing contained on the Platform and/or Materials should be interpreted asgranting to you any license or right to use any of the Materials (other than as provided herein)and/or third-party proprietary content on the Platform without the express written permission ofFoodjee or the relevant third-party owner, as applicable. Any rights not expressly granted hereinare reserved by Foodjee and Foodjee's licensors.
YOUR CONTENT AND CONDUCT
I. Your Conduct
By accessing the Platform or the Services, you agree:
You agree to comply with the above conduct requirements and agree not assist or permit anyperson in engaging in any conduct that does not comply with the above conduct. In the event thatFoodjee believes that you have breached any of the above conduct requirements, Foodjeereserves the right to suspend and/or permanently terminate your Account at our sole discretion.Further, you agree that the consequences of commercial use or re-publication of Your Content(defined below) or Materials from the Platform or other violations of the foregoing proscriptionsmay be so serious and incalculable that monetary compensation may not be a sufficient orappropriate remedy, and that Foodjee will be entitled to temporary and permanent injunctive reliefto prohibit such use or activity without the need to prove damages.
II. Your Content
Foodjee may provide you with interactive opportunities (i) on the Platform, including, withoutlimitation, features such as user ratings and reviews, saved favorites, liked items and bookmarkedMerchants, user profiles and pictures, (ii) on social media pages maintained by Foodjee, as wellas (iii) through other communications with you, including, without limitation, through text ("SMS")or multimedia ("MMS") messages (collectively, "Interactive Areas"). You represent and warrantthat you are the owner of and/or otherwise have the right to provide all information, comments,reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post,publish, and/or otherwise make available to Foodjee through the Platform or otherwise inconnection with your use of our Services, including, without limitation, information and materialsprovided or made available in connection with any Facebook, Google, or other third party login("Your Content"). Your Content includes, without limitation, your username and/or other userprofile information such as your ratings history and how long you have been a Foodjee diner,textual, visual, or audio content and information, whether transmitted via the Platform, SMS orMMS message, or otherwise.
III. Use of Your Content
You grant Foodjee. an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusiveworldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform,translate, create derivative works from, distribute, and/or otherwise use Your Content in all formsof media now known or hereafter invented for the purpose of operating, promoting, and improvingour Site, business, products and services, and developing new ones (collectively, the "Uses").The Uses include, without limitation, use of your username and/or other user profile informationsuch as your ratings history and how long you have been a Foodjee diner, to attribute YourContent to you on the Platform, including in Interactive Areas and other public areas on ourPlatform, or otherwise in connection with our Services. All Uses will be made without notificationto and/or approval by you and without the requirement of payment to you or any other person orentity. Further, you hereby grant Foodjee. a royalty-free, perpetual, irrevocable, transferable,sublicensable, worldwide, nonexclusive license to incorporate and use any of your suggestions,input, or other feedback relating to the Platform or the Services (collectively, the "Feedback") forany purpose without notice to, approval by, or compensation to you.
You further understand and agree that you may be exposed to third-party content that isinaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose.Foodjee and its parents, subsidiaries, affiliates, and each of their officers, directors, employees,successors, assigns, licensors, licensees, designees, business partners, contractors, agents andrepresentatives (collectively, the "Released Parties") will not be responsible for, and you herebyexpressly release the Released Parties from any and all liability for the action of any and all thirdparties with respect to Your Content, or for any damages you allege to incur as a result of orrelating to any third-party content.
IV. Conduct within Interactive Areas
By transmitting Your Content, you agree to follow the standards of conduct below, and anyadditional standards that may be stated on the Platform. We expect your cooperation in upholdingour standards. You are responsible for all of Your Content. You agree that Your Content will not:
We do our best to encourage civility and discourage disruptive communication on the Platform.We also do our best to discourage communications that incite others to violate our standards.Foodjee may monitor any and all use of the Platform, including, without limitation, interactionsbetween our users; however, we are under no obligation to do so. We may manage the Platformin a manner intended to protect our property and rights and to facilitate the proper functioning ofthe Platform. If any of Your Content or conduct on our Platform violates our standards, or anyother terms of this Agreement; or interferes with other peoples' enjoyment of the Materials or ourPlatform or Services; or is inappropriate in our judgment; we reserve the right, in our solediscretion and without notice to you, (i) to change, delete or remove, in part or in full, any of YourContent, (ii) to terminate or suspend access to any Interactive Areas or any other part of ourPlatform, and/or (iii) to terminate or suspend your Account; in each case, with or without notice.Foodjee will cooperate with local, state, and/or federal authorities to the extent required byapplicable law in connection with Your Content.
V. Ratings and Reviews
The Platform and other Interactive Areas may allow you to rate (each, a "Rating") and post reviews(each, a "Review") of Merchants or Delivery Partners. Such Ratings and Reviews are consideredYour Content and are governed by the terms and conditions of this Agreement. Ratings andReviews are not endorsed by Foodjee, and do not represent the views of Foodjee or of any affiliateor partner of Foodjee. Foodjee does not assume liability for Ratings and Reviews or for anyclaims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a highlevel of integrity with our Ratings and Reviews and other aspects of Your Content. Therefore, allRatings and Reviews must comply with the following criteria, in addition to and without limitingother requirements applicable to Your Content as set forth in these Terms: (1) before posting aRating or Review, you must have had recent first-hand experience with the Merchant or DeliveryPartner; (2) you may not have a proprietary or other affiliation with either the Merchant, any of itscompetitors or Delivery Partners; (3) you may not draw any legal conclusions regarding theMerchants or Delivery Partner's products, services, or conduct; (4) your Review must otherwisecomply with the terms of this Agreement as well as all applicable laws, rules, and regulations,including without limitation the Federal Trade Commission's Guides Concerning the Use ofEndorsements and Testimonials in Advertising (which may be foundat http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf), including that yourReview must disclose any "material connection" you may have with Foodjee or the Merchant orthe Delivery Partner; and (5) you will not submit a Rating or Review in exchange for payment,free food or beverage items, or other benefits from any Merchant or Delivery Partner. Any Ratingand/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratingsand Reviews, the Materials and/or the Platform may be removed or excluded by us without notice.
COMMUNICATIONS & TEXT MESSAGES
When you use the Services, or send emails, text messages, and other communications from yourdesktop or mobile device to us, you may be communicating with us electronically. You consent toreceive communications from us or on our behalf electronically, such as e-mails, texts, mobilepush notices, or notices and messages through the Services, and you agree that all agreements,notices, disclosures, and other communications that we provide to you electronically satisfy anylegal requirement that such communications be in writing. You agree to keep your contactinformation, including email address, current. This subparagraph does not affect your statutoryrights.
Your voluntary provision to Foodjee of your cell phone number represents your consent thatFoodjee may contact you by telephone, SMS, or MMS messages at that phone number, and yourconsent to receiving such communications for transactional, operational, or informationalpurposes. When you provide your phone number to Foodjee, you warrant that you are the currentsubscriber or authorized user of the relevant account. You understand and agree that suchmessages may be sent using automated technology. You may unsubscribe from receiving textmessages from Foodjee at any time. To revoke your consent to receiving SMS or MMS messagesfrom Foodjee, you agree to follow the unsubscribe procedures described below.
When placing orders through the Platform, you may receive order status messages from Foodjeeabout each order. To unsubscribe from order-related messages, just reply "STOP" to the numbersending the message. To resubscribe, text "START" to the same number from the phone numberassociated with your account. If you need assistance, text "HELP". Please note that unsubscribingfrom one of the branded properties in our Platform will not automatically unsubscribe you fromanother separately branded property in our Platform. For example, if you unsubscribe fromFoodjee order-related messages, you may still receive order-related messages when you placean order through Foodjee, unless you also unsubscribe from Foodjee order-related messages.
Additionally, you may receive messages from Foodjee following receipt of a completed ordersoliciting feedback and/or other information relating to the order. You may unsubscribe from allsuch feedback messages by replying "STOP" to the number sending the feedback messages. Toresubscribe, text "START" to the number sending the feedback messages using the phonenumber associated with your account. Please note that unsubscribing from such feedback textswill not prevent you from receiving texts from Foodjee, the Merchant, or your delivery personregarding your order or its delivery unless you also text "STOP" to the number sending the order-related messages, and even in such event, you may still receive individual texts from the Merchantor your delivery person to enable successful delivery of your order.
You may also receive text messages in response to certain Customer Care requests. Tounsubscribe from Customer Care messages, just reply to the message by texting "STOP" to thenumber sending the message.
If you unsubscribe from receiving text messages from Foodjee through the process describedabove, you may continue to receive text messages for a short period while Foodjee processesyour request(s). If you change or deactivate the phone number you provided to Foodjee, you havean affirmative obligation to immediately update your account information and the phone number(s)attached to your account to prevent us from inadvertently communicating with anyone whoacquires any phone number(s) previously attributed to you, and any new phone number(s) youattach to your Account may receive Foodjee's standard SMS or MMS messages unless you alsounsubscribe via the above procedures.
Standard data and message rates may apply for SMS and MMS alerts, whether you send orreceive such messages. Please contact your mobile phone carrier for details. Your mobile phonecarrier (e.g., T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages. Ifyou require assistance, please call our Customer Care team at email@example.com.
ADDITIONAL TERMS FOR MOBILE APPLICATIONS
We may make available software to access Foodjee's websites, technology platforms, and relatedonline and mobile services via a mobile device ("Mobile Applications"). To use any MobileApplication, you must use a mobile device that is compatible with that Mobile Application. Foodjeedoes not warrant that any Mobile Application will be compatible with your mobile device. You mayuse mobile data in connection with the Mobile Applications and may incur additional charges fromyour wireless provider for these services. You agree that you are solely responsible for any suchcharges. Foodjee hereby grants you a non-exclusive, non-transferable, revocable license to usea compiled code copy of the Mobile Applications for one Account on a mobile device owned orleased solely by you, for your personal use. You acknowledge that Foodjee may from time-to-time issue upgraded versions of the Mobile Applications, and may automatically electronicallyupgrade the version of any Mobile Applications that you are using on your mobile device. Youconsent to such automatic upgrading on your mobile device and agree to timely upgrade theMobile Application in the event there is no automatic update. Please upgrade to the latest versionof the Mobile Applications in order to view the most up-to-date information on the Platformregarding Merchants featured on the Mobile Applications. You further agree that the terms andconditions of this Agreement will apply to all upgrades to the Mobile Applications. Any third-partycode that may be incorporated in the Mobile Applications is covered by the applicable open sourceor third-party license EULA, if any, authorizing use of such code. The foregoing license grant isnot a sale of the Mobile Applications or any copy thereof, and Foodjee or its third-party partnersor suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof).Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except asexpressly provided for in this Agreement, is void. Foodjee reserves all rights not expressly grantedunder this Agreement with respect to the Mobile Applications and otherwise. If any MobileApplication is being acquired on behalf of the United States Government, then the followingprovision applies: The Mobile Application will be deemed to be "commercial computer software"and "commercial computer software documentation," respectively, pursuant to DFAR § 227.7202and FAR § 12.212, as applicable. Any use, reproduction, release, performance, display, ordisclosure of the Platform and any accompanying documentation by the U.S. Government will begoverned solely by this Agreement and is prohibited except to the extent expressly permitted bythis Agreement. The Mobile Applications originate in the United States and are subject to UnitedStates export laws and regulations. The Mobile Applications may not be exported or re-exportedto certain countries or those persons or entities prohibited from receiving exports from the UnitedStates. In addition, the Mobile Applications may be subject to the import and export laws of othercountries. You agree to comply with all United States and foreign laws related to use of the MobileApplications and the Platform.
The following applies to any Mobile Application you acquire from the Apple App Store ("Apple-Sourced Software"): You acknowledge and agree that this Agreement is solely between you andFoodjee, not Apple, Inc. ("Apple") and that Apple has no responsibility for the Apple-SourcedSoftware or content thereof. Your use of the Apple-Sourced Software must comply with the AppStore Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish anymaintenance and support services with respect to the Apple-Sourced Software. In the event ofany failure of the Apple-Sourced Software to conform to any applicable warranty, you may notifyApple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to themaximum extent permitted by applicable law, Apple will have no other warranty obligationwhatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities,damages, costs, or expenses attributable to any failure to conform to any warranty will be solelygoverned by this Agreement and any law applicable to Foodjee as provider of the software. Youacknowledge that Apple is not responsible for addressing any of your claims or those of any thirdparty relating to the Apple-Sourced Software or your possession and/or use of the Apple-SourcedSoftware, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii)claims arising under consumer protection, privacy or similar legislation; and all such claims aregoverned solely by this Agreement and any law applicable to Foodjee as provider of the software.You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software oryour possession and use of that Apple-Sourced Software infringes that third party's intellectualproperty rights, Foodjee, not Apple, will be solely responsible for the investigation, defense,settlement, and discharge of any such intellectual property infringement claim to the extentrequired by this Agreement. You and Foodjee acknowledge and agree that Apple, and Apple'ssubsidiaries, are third party beneficiaries of this Agreement as it relates to your license of theApple-Sourced Software, and that, upon your acceptance of the terms and conditions of thisAgreement, Apple will have the right (and will be deemed to have accepted the right) to enforcethis Agreement against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software.
The following applies to any Mobile Applications you acquire from the Google Play Store("Google-Sourced Software"): (i) you acknowledge that the Agreement is solely between you andFoodjee only, and not with Google, Inc. ("Google"); (ii) your use of Google-Sourced Software mustcomply with Google's then-current Google Play Store Terms of Service; (iii) Google is only aprovider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Foodjee,and not Google, is solely responsible for its Google-Sourced Software; (v) Google has noobligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi)you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relatesto Foodjee's Google-Sourced Software.
THE PLATFORM, THE SERVICES, THE MATERIALS, AND ALL OTHER CONTENT ON THEPLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OFANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING.TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, FOODJEE DISCLAIMS,WITH RESPECT TO THE SERVICES, THE PLATFORM, THE MATERIALS AND ALL OTHERCONTENT ON THE PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORYOR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.FOODJEE DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES,THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE,UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED,AND/OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHERCONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFULCOMPONENTS. FOODJEE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONSREGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THESERVICES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE PLATFORM INTERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS,COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE PLATFORM,AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT FOODJEE)ASSUME THE ENTIRE COST OF USING THE SITE. APPLICABLE LAW MAY NOT ALLOWTHE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLYAPPLY TO YOU.
FOODJEE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCERESULTING FROM CAUSES BEYOND FOODJEE'S REASONABLE CONTROL, INCLUDING,WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THEINTERNET AND ELECTRONIC COMMUNICATIONS. FOODJEE IS NOT RESPONSIBLE FORANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCHPROBLEMS.
FOODJEE RELIES UPON MERCHANTS TO PROVIDE ACCURATE ALLERGEN ANDDIETARY INFORMATION AND GENERAL PRODUCT SAFETY. FOODJEE DOES NOTREPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THESERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE,INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGENINFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OFOPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONALPURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THESERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION,NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALLFOODJEE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGESWHATSOEVER (INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONALDISTRESS, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHERECONOMIC ADVANTAGE), EVEN IF FOODJEE HAS BEEN PREVIOUSLY ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT,NEGLIGENCE, TORT, OR ANY OTHER ACTION OF ANY TYPE THAT IN ANY MANNERARISES OUT OF OR IN CONNECTION WITH THE PLATFORM OR THE SERVICESPROVIDED ON OR THROUGH THE PLATFORM OR BY FOODJEE.
FOODJEE ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANYDAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OROTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, ORDOWNLOADING OF ANY MATERIAL FROM THE PLATFORM. FOODJEE ASSUMES NORESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTIONWITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLEON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD-PARTY WEBSITE PAGES ORADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION,LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY,DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTYCAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANYFAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN NO EVENT SHALL FOODJEE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSESAND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, NEGLIGENCE, TORTOR ANY OTHER ACTION OF ANY TYPE EXCEED IN THE AGGREGATE (A) THE AMOUNTPAID BY YOU TO FOODJEE OR A MERCHANT IN THE SIX (6) MONTH PERIODIMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, IF ANY, OR (B)$1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THEEXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTALDAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENTPROVIDED BY LAW.
YOU AND FOODJEE AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OFLIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THISAGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THECONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THEDECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND FOODJEEAGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THISAGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDEDFOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGEARISING OUT OF YOUR USE OF THE SITE IS TO DISCONTINUE USING THE PLATFORMAND SERVICES, WHICH YOU MAY DO AT ANY TIME.
THIRD PARTY LINKS
The Platform may contain links to websites that are owned, controlled, developed, sponsoredand/or maintained by third parties and which may be subject to additional terms and conditions("Third Party Websites"). If you click on a link to a Third-Party Website, Foodjee will not warn youthat you have left the Services or Platform or that you are subject to the terms and conditions ofanother website or third-party service provider. Foodjee does not review, monitor, operate and/orcontrol the Third-Party Websites and Foodjee makes no guarantees, representations, and/orwarranties as to, and shall have no liability for, the content, products or services available on orthrough and/or the functioning of the Third-Party Websites. By providing access to Third PartyWebsites, Foodjee is not recommending and/or otherwise endorsing the products and/or servicesprovided by the sponsors and/or owners of those websites. Your access to and/or use of theThird-Party Websites, including, without limitation, providing information, materials and/or othercontent to the Third-Party Websites, is entirely at your own risk. Foodjee reserves the right todiscontinue links to any Third-Party Websites at any time and for any reason, without notice.
Foodjee respects the intellectual property of others, and we ask all of our users to do the same.If you believe that your copyrighted work has been copied and is accessible on the Platform or awebsite through which our Services may be accessed in a way that constitutes copyrightinfringement, please provide Foodjee's Copyright Agent (as set forth below) with notificationcontaining the following information required by the Digital Millennium Copyright Act, 17 U.S.C.§512 ("DMCA"):
Please send this notification to our copyright agent at: Tasty Points Inc 66 West Flagler Street 9thfloor Miami, FL 33130.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL ISINFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY ANDCIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS'FEES.
Please note that this procedure is exclusively for notifying Foodjee and its affiliates that yourcopyrighted material has been infringed. The preceding requirements are intended to comply withFoodjee's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do notconstitute legal advice. It may be advisable to contact an attorney regarding your rights andobligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Foodjee has adopted a policy ofterminating, in appropriate circumstances, users who are deemed to be repeat infringers. Foodjeemay also in its sole discretion limit access to the Platform, the Services and/or terminate theAccounts of any users who infringe any intellectual property rights of others, whether or not thereis any repeat infringement.
TERMINATION AND VIOLATIONS OF THE AGREEMENT
Your rights under this Agreement will terminate automatically without notice if you fail to complywith any term of this Agreement. Further, Foodjee reserves the right, in its sole and absolutediscretion, to modify, suspend, or discontinue at any time, with or without notice, the Platformand/or Services offered on or through the Platform (or any part thereof), including but not limitedto the Platform's features, look and feel, and functional elements and related Services. We willhave no liability whatsoever on account of any change to the Platform or any suspension ortermination of your access to or use of the Platform. You may terminate this Agreement at anytime by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing useof the Platform and Services provided herein.
Upon termination of this Agreement for any reason or no reason: (1) your access rights willterminate and you must immediately cease all use of the Platform and Services; and (2) anyprovision of this Agreement that contemplates or governs performance or observance subsequentto termination of this Agreement will survive the termination of this Agreement, including withoutlimitation the following sections: (i) "Your Content and Conduct;" (ii) "Disclaimer;" (iii) "Limitationof Liability;" (iv) "Important Note to New Jersey Consumers;" (v) "Termination and Violations ofthis Agreement;" (vi) "Exclusive Venue;" (vii) "Indemnification" and (viii) "Waiver and Severability."
Foodjee reserves the right to seek all remedies available at law and in equity for violations of theAgreement, including, without limitation, the right to block access to the Platform and/or Servicesfrom a particular Account, device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole orin part, by operation of law or otherwise, without our prior written consent. We may assign thisAgreement in whole or in part at any time to any entity without your notice or consent. Anypurported assignment by you in violation of this section shall be null and void. This Agreementbinds and inures to the benefit of each party and the party's successors and permitted assigns.
You agree to indemnify and hold harmless Foodjee and its officers, directors, employees, agents,and affiliates (each, an "Indemnified Party") from and against any losses, liabilities, claims,actions, costs, damages, penalties, fines and expenses, including without limitation attorneys' andexperts' fees and expenses, that may be incurred by an Indemnified Party arising out of or inconnection with: (i) Foodjee's use of your User Content; (ii) your unauthorized use of the Services,(iii) your breach of this Agreement; (iv) your actual or alleged violation of any law, rule orregulation; (v) any third party's access or use of the Services using your Foodjee Account; or (vi)any dispute or issue between you and any third party, including without limitation any DeliveryPartner or Merchant.
CHANGES TO THE AGREEMENT
We may change this Agreement from time to time and without prior notice to you. If we make achange to this Agreement, it will be effective as soon as we post it and the most current versionof this Agreement will always be posted under the "Terms of Service" link available on ourPlatform ("Updated Terms"). In addition to posting the Updated Terms, we may elect to provideadditional notice to you of the Updated Terms, such as by sending an email to you or providing anotice through the Platform and/or Services. You agree that you will review this Agreementperiodically and check the "Effective" date in this Agreement to stay aware of any changes. Bycontinuing to access and/or use the Platform and/or Services after we post Updated Terms, youagree to be bound by the Updated Terms, and if you do not agree to the Updated Terms, you willstop using the Platform and/or accessing the Services. Except as otherwise provided in the"Dispute Resolution" section, the Updated Terms will govern any disputes between you andFoodjee, even if the dispute arises or involves facts dated before the "Effective" date of theUpdated Terms.
Except for the "Dispute Resolution" section below, the terms, conditions, and policies containedin this Agreement shall be governed by and construed in accordance with the laws of the State ofFlorida, without regard to its choice or conflict of laws principles.
You and Foodjee agree that to the extent any dispute, claim, or controversy is permitted toproceed in court, it shall be brought and heard exclusively in the state and federal courts of Miami,Florida.
You and Foodjee both agree that regardless of any statute or law to the contrary, any claim orcause of action arising out of or related to use of the Services or these Terms of Service must beled within ONE (1) YEAR after such claim or cause of action arose or be forever barred.
WAIVER AND SEVERABILITY
Any waiver by Foodjee of any term of this Agreement must be in writing. If any portion of thisAgreement is found to be void, invalid, or otherwise unenforceable, then that portion shall bedeemed to be severable and, if possible, modified or replaced by a valid, enforceable provisionthat matches the intent of the original provision as closely as possible. The remainder of thisAgreement shall continue to be enforceable and valid according to the terms contained herein.
This Agreement, together with any amendments and any additional agreements you may enterinto with Foodjee in connection with the Platform and the Services hereunder, shall constitute theentire agreement between you and Foodjee concerning the Platform, any orders placed throughthe Platform, and the Services hereunder.
If you have any questions regarding this Agreement or the Platform, please contact us at emailaddress: firstname.lastname@example.org.