- Eligibility– You must be at least eighteen (18) years of age or the age of majority in the place of your residence to become a Customer or purchase the Services without the consent of a parent or guardian. By using the Website or Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and you agree to abide by this Agreement.
- Individual Features and Services– When using the Website or Services, you may be subjected to specific services and features, which may be posted from time to time on the Website (the “Guidelines”). All such Guidelines are hereby incorporated by reference in this Agreement. To the extent that any terms of this Agreement conflicts with any Guidelines, this Agreement shall prevail.
- Modification of Agreement– We reserve the right, in our sole discretion, to change, modify, add or remove portions of this Agreement at any time or for any reason without notice to you and by simply updating this page. This Agreement was last updated and is effective as of the “Updated” date indicated below. You should visit this page from time to time to review the then-current Agreement, because it is binding on you, and because your continued use of or access to the Website or use or purchase of the Services after the posting of changes will be construed as your acceptance of the revised Agreement. In the case of material changes to this Agreement, the amended Agreement will automatically become effective 30 days after they are initially posted on the Website.
- Customer– When you purchase the Services on the Website, you become a Customer.
- Account Security– You are responsible for maintaining the confidentiality of any username and password you create or use to register for, purchase and/or use the Services. You agree to (a) logout of any username or password-based accounts each time you exit those accounts, and (b) notify us immediately of any unauthorized use of your username or password or any other breach of security. We shall not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing any accounts from a public or shared computer so that others are not able to view or record your passwords or other personal information.
- Responsibility for Food and Beverage Orders– We shall be responsible to the Customer for food and beverage orders we have accepted and been paid for through the Website. This includes (a) the selection, quantity and quality of the food and beverages turned over to the Customer at pickup or handed off for delivery; (b) appropriate wrapping to maintain the food or beverages during transport to restaurant industry standard; and (c) timely availability for pickup or timely delivery to within a reasonable range of the estimated pickup or delivery time. We shall not be responsible to have available for ordering any particular food or beverage item shown on the menu posted on the Website, and all food and beverage items are subject to availability at the time of ordering. Our responsibility hereunder is limited to accommodation of the Customer through refund of any money paid for deficient order fulfillment or replacement, at the Customer’s option. In no event shall we have responsibility under this provision for consequential damages resulting from deficient order fulfillment above and beyond refund or replacement.
- Responsibility for Delivery– As between you and us, we shall bear responsibility for the non-delivery, untimely delivery, or mishandled delivery of any food or beverage order, provided, however, that the Customer was available to receive the order at the delivery address and within the delivery timeframe at the time of delivery, and that the deliveryman had reasonable access to the place of delivery (e.g., gate access, accessible interior roadways, no dangerous conditions at the premises, etc.). Our responsibility hereunder is limited to accommodation of the Customer through refund of any money paid for deficient order fulfillment or replacement, at the Customer’s option. In no event shall we have responsibility under this provision for consequential damages resulting from deficient order fulfillment above and beyond refund or replacement. Notwithstanding the foregoing, dissatisfaction with delivery service for reasons unrelated to the content of the food or beverages ordered, for example, a rude deliveryman, shall not be our responsibility, as it is understood and agreed that delivery service is provided hereunder by an independent contractor.
- Alcoholic Beverage Delivery– You agree that appropriate identification may be required for the pickup or delivery of orders containing alcoholic beverages. The failure to provide this identification may result in withholding of the order in order to comply with applicable law, and shall not be grounds for a refund or replacement of such order, or any consequential damages.
- Accuracy of Information– Information on our food and beverage offerings may be posted on the Website or in follow-up communications with Customers or potential Customers, such as nutrition information, health & safety information, and allergy information. Similarly, we may post information on estimated food preparation time, delivery times and means. The accuracy of this information is not guaranteed. By agreeing to this Agreement, you agree that we shall not be responsible for any loss or damage, nor liable to refund any money, based upon any inaccuracy in the information posted on the Website or in follow-on communications with Customers or potential Customers.
- Accuracy of Pricing– We will honor any prices posted on the Website provided that such pricing remains posted on the Website at the time Services are ordered, and that the food or beverage items in question are available for sale.
- Proprietary Rights– We own and retain all proprietary rights in the Website. The Website contains content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services and other elements of the Services (the “Proprietary Materials”) that are protected by copyright, trade dress, patent and trademark laws, international conventions, and other relevant intellectual property and property rights, and applicable laws. Except for that information which is public domain or for which you have been given express written permission, you may not copy, modify, publish, transmit, distribute, license, perform, display or sell any Proprietary Materials. Proprietary Materials do not include Client or User Content (as defined below) or other content submitted by Clients or Users. We retain all rights not expressly granted in this Agreement. You shall not acquire any right, title or interest to the Website, the Services or Proprietary Materials, except for the limited rights set forth in this Agreement.
- Accurate Content– You are solely responsible for the Client Content (as defined below) that you publish or display (a “post”) on the Website or in connection with the Services, or transmit to other Users.
- Moderating Content– You understand and agree that we may, but have no obligation to, moderate, review and delete any content, comments, messages, photos or profiles (collectively, “User Content”), in each case in whole or in part, that in our sole judgment, violates this Agreement, may be offensive or illegal, or that may violate the rights or safety of other Users.
- License to Your Content– By posting or submitting Content to any public area of the Website, you automatically grant, and you represent and warrant that you have the right to grant, to Montelimar, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and Content and to prepare derivative works of, or incorporate into other works, such information and Content, and to grant and authorize sublicenses of the foregoing. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your Content. You also hereby grant to each User of the Website or the Services a non-exclusive license to access your Content, in each case as permitted by the functionality of the Website or the Services and this Agreement. The above license granted by you shall survive any termination or expiration of this Agreement.
- Representations and Warranties– In connection with your Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to post the Content to the Website, to authorize us to use the Content in the manner contemplated by us and this Agreement, and to grant the rights and licenses set forth above, (ii) the public posting and use of your Content by us and other Users will not infringe or violate the rights of any third party or violate any applicable law or regulation.
- Prohibited User Content– The following is a partial list of the kind of User Content that is illegal or prohibited on the Website or in connection with the Services. We reserve the right to investigate and take appropriate legal action, in our sole discretion, against anyone who violates this provision, including without limitation, removing the offending communication from the Website and terminating the account of such violators. It includes, but is not limited to, User Content that:
- is patently offensive to the online community, such as content that promotes bias, racism, bigotry, hatred or physical harm of any kind against any group or individual;
¾ harasses or advocates harassment of another person;
¾ involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing or “spamming;”
¾ promotes information that you know is false, misleading or promotes illegal activities or conduct that is biased, abusive, threatening, obscene, profane, offensive, sexually-oriented, racially offensive, defamatory or libelous;
¾ promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
¾ contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);
¾ provides material that exploits people under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under the age of 18;
¾ provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
¾ solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; or
- engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
- Client Profile– All information you include in your client profile, including without limitation the information in your billing account, must be accurate, current and complete. If information provided to us subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change.
- Prohibited Activities– We reserve the right to investigate and terminate your account if you have misused the Website or the Services, or behaved in a way which could be regarded as inappropriate or whose conduct is unlawful or illegal. The following is a partial list of the type of actions that you may not engage in with respect to the Website or the Services:
- You will not use the Website or the Services for any purpose that is unlawful or prohibited by this Agreement;
¾ You will not impersonate any person or entity;
- You will not “stalk” or otherwise harass any person;
- You will not express or imply that any statements you make are endorsed by us without our specific prior written consent;
- You will not use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents;
- You will not post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights;
- You will not remove any copyright, trademark or other proprietary rights notices contained on the Website;
- You will not interfere with or disrupt the Website or the servers or networks connected to the Website;
- You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Website;
- You will not “frame” or “mirror” any part of the Website without our prior written authorization, nor use metatags or code or other devices containing any reference to us, the Website or the Services in order to direct any person to any other website for any purpose;
- You will not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Website or any software used on or for the Website or cause others to do so.
- Modifications to the Website or the Services– We reserve the right at any time to modify or discontinue, temporarily or permanently, the Website or the Services (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Website or the Services.
- Blocking of IP Addresses– In order to protect the integrity of the Website, we reserve the right at any time in our sole discretion to block Users originating at certain IP addresses from accessing the Website or the Services.
- No Warranties: “As Is” “As Available” and “With All Faults”– TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MONTELIMAR, AND ITS AFFILIATES, PARTNERS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOU EXPRESSLY AGREE THAT THE USE OF THE WEBSITE AND/OR THE SERVICES IS AT YOUR SOLE RISK AND THAT ANY ADVICE THAT MAY BE POSTED ON THE WEBSITE WILL NOT CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE WEBSITE AND THE SERVICES, USER CONTENT AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE OR THE SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
- Operation and Content– WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OR IN CONNECTION WITH THE WEBSITE AND/OR THE SERVICES, WHETHER CAUSED BY USERS, CUSTOMERS OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE WEBSITE AND/OR THE SERVICES. WE ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER OR CLIENT COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS AND/OR CUSTOMERS OR TO ANY OTHER PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE WEBSITE AND/OR THE SERVICES.
- UNDER NO CIRCUMSTANCES WILL WE OR ANY OF OUR AFFILIATES, ADVERTISERS, PROMOTERS OR DISTRIBUTION PARTNERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF THE WEBSITE OR THE SERVICES, ANY CONTENT POSTED ON THE WEBSITE OR TRANSMITTED TO USERS OR CUSTOMERS, OR ANY INTERACTIONS BETWEEN USERS OR CUSTOMERS, WHETHER ONLINE OR OFFLINE. WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANY EVENTS OR ACTIONS OCCURRING AT VENUES OR ANY INTERACTION BETWEEN A USER OR CUSTOMER AND ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION EMPLOYEES OF A DELIVERY CONTRACTOR.
- Links and Third-Party Services– The Website may provide, or third parties may provide, links or functionality in the Website to other websites or third-party resources (“Third-Party Services”). Because we have no control over Third-Party Services, you acknowledge and agree that we are not responsible for the availability of the Third-Party Services, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from the Third-Party Services. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through Third-Party Services. ACCESS AND USE OF THIRD-PARTY SERVICES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES MADE AVAILABLE THROUGH THIRD-PARTY SERVICES, IS SOLELY AT YOUR OWN RISK. When you leave the Website, these Terms of Service no longer govern. It is your responsibility to review applicable terms and conditions and policies, including the privacy and data gathering practices, of any Third-Party Services.
- Limitation of Liability– Except in jurisdictions where such provisions are restricted, in no event, and under no legal theory, including without limitation negligence, shall Montelimar or its affiliates, contractors, employees, agents or third-party partners or suppliers be liable to you or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including without limitation lost profits, data or use or cost of cover, even if we have been advised of the possibility of such damages. In cases where applicable law does not allow the above limitation of liability, our liability shall be limited to the extent permitted by applicable laws.
- Limitation of Damages– In no event shall Montelimar or its affiliates, contractors, employees, agents, or third-party partners, licensors or suppliers’ total liability to you for any cause whatsoever (whether in contract, tort (including negligence), warranty, or otherwise), and regardless of the form of the action, exceed the greater of: (i) one hundred US dollars ($100) or (ii) the amount paid by you to us for the Services in the 12 months prior to the action giving rise to the liability.
- Indemnity by You– You agree to indemnify and hold Montelimar, its parent companies, subsidiaries, affiliates, officers, agents, licensors, and other partners and employees, harmless from any loss, liability, claim, damages, obligations, or demand, including attorney fees, made by any third party due to or arising out of (i) your use of the Website or the Services, (ii) your violation or breach of this Agreement, (iii) your User Content, or (iv) any breach of your representations and warranties set forth above. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Notice– We may provide you with notices, by email, text message or postings on the Website. Notice will be deemed given 24 hours after the email is sent, unless we are notified that the email address is invalid. Alternatively, we may give you notice through a mechanism made available through the Website, such as through the use of a pop-up on the Website.
- No Third-Party Beneficiaries– You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
- Jurisdiction and Choice of Law– This Website and the Services are governed by this Agreement. The Website, the Services and any use of the Website or the Services shall be governed by the laws of Nevada applicable therein without reference to principles of conflict of laws. You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in Clark County, Nevada, and irrevocably agree that all disputes shall be heard in such courts. You agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
- Waiver– A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
- Survival– All terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.
- Entire Agreement– This is the entire agreement between you and us relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. The Agreement shall not be modified except in a writing, signed by both parties, or by a change to the Agreement made by us as set forth above.
- Severability– If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
- Assignment– The Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
- Headings– The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
- Claims– YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE AND/OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.