TERMS OF SERVICE FOR CUSTOMERS
FreshBuy, Inc. (“FreshBuy,” “we,” “us,” or “our”) welcomes you. We’re really excited that you have decided to access and use our services, which are made up of our Direct ordering platform (“Direct”), which is accessed via our Facebook social plugin (the “Plugin”), our licensees’ websites, and the applications operated by FreshBuy on behalf of our licensees (the “Restaurant Apps”), as well as our Discover marketplace platform (“Discover”), which is accessed via our website, www.FreshBuy.com and/or our dedicated Discover marketplace website, eat.FreshBuy.com (collectively, the “Website”), the Plugin, and our mobile application (the “FreshBuy App”). The Direct and Discover platforms are collectively referred to herein as the “Platform.” The Platform, the Website, the Plugin, the FreshBuy App, and the Restaurant Apps together comprise, and are collectively referred to as, the “Services.”
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DESCRIPTION OF SERVICES
FreshBuy is a next-generation meal ordering Platform that utilizes the latest web, mobile, and social networking technologies to allow you to find and order from your favorite restaurants, and much more.
Although you are able to place orders through the Services using either Direct or Discover, FreshBuy itself does not sell the products contained in your order, is not a party to any such transaction, and has no control over the quality or safety of the products. Your order, including an order placed through the Discover marketplace, is between you and the restaurant from which you order. In addition, restaurants may state ingredients or represent allergen or food preparation standards through the Services, such as food or beverages being nut-free, gluten-free, lactose-free, organic, or kosher. We do not investigate or verify the menus, ingredients, food preparation standards, or any descriptions, statements, or representations made by the restaurants. Therefore, if you or anyone else who will be consuming any item from an order has any food allergies or specific preparation requirements, you are strongly advised to contact the restaurant directly to address your specific needs.By using the Services, you agree that you understand that FreshBuy is not responsible for any statements or omissions concerning the products contained in your order.
Also, please be advised that your use of Android Pay or Apple Pay is subject to the terms and conditions, including the privacy policies, of Google and Apple, respectively.
We provide Visitors and Registered Users with access to the Services as described in this Agreement.
o Visitors. No login is required for Visitors to the Website. Visitors to can (a) view all publicly-accessible content, (b) e-mail us, and (c) chat us.
o Registered Users. Login is required for all Registered User services. Registered Users can do all the things Visitors can do, and also (a) place orders, (b) search for restaurants based on location and cuisine, (c) research a particular restaurant, (d) sign up for alerts and other notifications, and (e) blog about your dining experience, including posting to your Facebook wall.
FreshBuy is under no obligation to accept any individual as a Registered User, and may accept or reject any registration in its sole and complete discretion.
2. COMMUNITY GUIDELINES
FreshBuy’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Services, you hereby agree to comply with these community rules and that:
o You will not use the Services for any unlawful purpose, including any fraudulent activity, or to engage in any commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme;
o You will not access or use the Services to collect any market research for a competing businesses;
o You will not upload, post, e-mail, transmit, or otherwise make available any content that:
· infringes any copyright, trademark, or other proprietary rights of any person or entity; or
· is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
· discloses any personal information about another person, including that person’s name, e-mail address, postal address, phone number, credit card information, or any similar information;
o You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
o You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Platform, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
o You will not create multiple accounts for yourself for any reason, including, without limitation, in order to obtain the same promotion multiple times; and
o You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means.
We reserve the right, in our sole and absolute discretion, to deny you (or any device or IP address) access to the Services, or any portion of the Services, without notice.
The Services are available for individuals aged 13 years or older. If you are 13 or older, but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. You may not use the Services to purchase alcohol or tobacco products unless you and the recipient meet the minimum age requirements under applicable state or provincial laws and present a valid photo identification verifying your age at the time you pick up or receive delivery of your order.
Restaurants on our Platform are expressly prohibited from selling or offering for sale to any customer, regardless of age, any tobacco or nicotine products including, but not limited to, cigarettes and e-cigarettes. You may not attempt to purchase any such products on our Platform. We reserve the right to immediately deny you access to our Services, without notice, if we determine, in our sole discretion, that you have violated or attempted to violate this policy. For the avoidance of doubt, even if You are of legal age to purchase tobacco products in your jurisdiction, doing so or attempting to do so through our Platform is expressly prohibited.
4. PAYMENT; REFUNDS
You pay for orders via the Services. You agree that FreshBuy may immediately authorize your credit card (or other approved facility) for payment for any order made under your Password (as defined below).
As set forth more fully in Section 6 below, you must keep your Password strictly confidential.You are responsible for all activities and charges that occur under your Password. Your liability for such charges shall continue after termination of this Agreement.
If you have a question about a transaction on your credit card statement, please use the “Contact Us” section of the Website to contact customer service.
All refunds are subject to the refund policies of the restaurants from which you order. If you contact us seeking a refund, we cannot – and will not – process any refund until we receive the approval from the applicable restaurant. We will use reasonable efforts to request and obtain refunds when appropriate.
Restaurants available through the Services do not deliver to every location. If we currently do not deliver to your area, but you would like us to, please let us know. We are expanding the reach of our Services, so we recommend that you create an account.
In the United States only, we use third-party delivery companies to deliver your orders. If you are not at the delivery location when your order arrives, the delivery person will leave the package for you at your door, or, if applicable, with the doorman or at the delivery center, and you will be charged the applicable fee for the order. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the delivery. In the case of inclement weather, your order will be delivered as soon as reasonably possible when the conditions permit.
FRESHBUY, NOT BEING THE DELIVERY SERVICE OR ITS AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE DELIVERY SERVICES AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
6. SIGN-IN NAME, PASSWORD, UNIQUE IDENTIFIERS
During the registration process for Registered Users, we will ask you to create an account, which includes a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason.
7. INTELLECTUAL PROPERTY
The Services contain material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of FreshBuy (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of FreshBuy (“FreshBuy Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of FreshBuy, Inc. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with FreshBuy Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of FreshBuy Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
8. COMMUNICATIONS TO FRESHBUY AND USER SUBMISSIONS
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information.
You retain all copyrights and other intellectual property rights in and to anything you post to the Services. You do, however, grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to use, modify, copy, distribute, publish, perform, sublicense, and create derivative works from all submissions you provide to us in any media now known or hereafter devised and for any purpose.
9. FRESHBUY BUCKS
If you are a resident of the United States, you may be eligible to earn “FreshBuy Bucks” in connection with our referral programs and/or various promotions that we may run from time to time, as described on the Website and elsewhere. FreshBuy Bucks, once accrued, are automatically applied towards your future orders using our Services at participating restaurants located in the United States. FreshBuy Bucks may never be redeemed or exchanged for real money or used outside the scope of the Services.
FreshBuy has the right to regulate, modify, and/or eliminate FreshBuy Bucks in its sole and absolute discretion at any time and without notice to you. We shall have no liability in connection with the exercise of this right. If you reside outside the United States this Section 9 shall not apply.
10. NO WARRANTIES/LIMITATION OF LIABILITY
ALTHOUGH WE TAKE OUR CUSTOMERS’ SATISFACTION VERY SERIOUSLY, IF YOU HAVE ANY PROBLEMS WITH YOUR FOOD ORDER, INCLUDING ANY DELIVERY SERVICES, PLEASE CONTACT THE RESTAURANT DIRECTLY. YOUR ORDER IS BETWEEN YOU AND THE RESTAURANT FROM WHICH YOU ORDER, AND FRESHBUY IS NOT AN ACTUAL PARTY TO ANY SUCH ORDER.
THE CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
THE SERVICES AND/OR THE CONTENT MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS, INCLUDING WITH RESPECT TO ALLERGY INFORMATION AND/OR FOOD PREPARATION STANDARDS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, PRICING, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE SERVICES AND/OR THE CONTENT. THE SERVICES AND THE CONTENT CONTAIN INFORMATION ON OUR PARTICIPATING RESTAURANTS’ PRODUCTS, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SERVICES OR IN THE CONTENT DOES NOT IMPLY THAT SUCH PRODUCT IS OR WILL BE AVAILABLE IN YOUR LOCATION. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SERVICES AND THE CONTENT AT ANY TIME WITHOUT NOTICE.
WE RESERVE THE RIGHT TO CANCEL OR MODIFY AN ORDER WHERE IT APPEARS THAT A CUSTOMER HAS ENGAGED IN FRAUDULENT OR INAPPROPRIATE ACTIVITY OR UNDER OTHER CIRCUMSTANCES WHERE IT APPEARS THAT THE ORDER CONTAINS OR RESULTED FROM A MISTAKE OR ERROR. IN ADDITION, WE RESERVE THE RIGHT TO REPORT ANY FRAUDULENT OR INAPPROPRIATE CONDUCT TO APPROPRIATE AUTHORITIES AT OUR DISCRETION.
11. EXTERNAL SITES
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
13. COMPLIANCE WITH APPLICABLE LAWS
The Services are based in the Canada. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of Canada. If you access the Services or the Content from outside of these countries, you do so at your own risk. Whether inside or outside of Canada, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
14. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your and any device’s access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.
15. DIGITAL MILLENNIUM COPYRIGHT ACT
FreshBuy respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or user submissions deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
4 Oak Grove Crt, Markham, On, L3T 2Z9
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number, and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
16. DOWNLOADING THE APPS FROM THE APP STORE
The following terms apply when you download the FreshBuy App and/or any of the Restaurant Apps (collectively, the “Apps”) from Apple’s App Store. These terms are in addition to all other terms contained in the Agreement.
o You acknowledge and agree that (i) the Agreement is concluded between you and FreshBuy only, and not Apple; and (ii) FreshBuy, not Apple, is solely responsible for the Apps and content thereof. Your use of the Apps must comply with the App Store Terms of Service.
o You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps.
o In the event of any failure of any of the Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the applicable App to you and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between FreshBuy and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of FreshBuy.
o You acknowledge that, in the event of any third-party claim that the Apps or your possession and use of an App infringes that third party’s intellectual property rights, as between FreshBuy and Apple, FreshBuy, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
o You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the Apps, and that, upon your acceptance of the terms and conditions of the Agreement, Apple, will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the Apps against you as a third-party beneficiary thereof.
17. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement or the Services or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court in Los Angeles, California may enforce the arbitrator’s award. The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Such disputes will be resolved by the arbitrator as determined under the JAMS Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. If conducted in person, the arbitration shall take place in Los Angeles, California. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, we may bring an action for injunctive relief in any court of competent jurisdiction.
18. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You expressly acknowledge and agree that this Agreement is formed in the State of California. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of California, without giving effect to its principles of conflicts of laws. If this Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Payment; Refunds,” “Deliveries,” “Intellectual Property,” “Communications to FreshBuy,” “No Warranties/Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
COPYRIGHT 2019 FRESHBUY, INC. ALL RIGHTS RESERVED. APPLE, THE APPLE LOGO, IPAD, AND IPHONE ARE TRADEMARKS OF APPLE INC., REGISTERED IN THE U.S. AND OTHER COUNTRIES. APP STORE IS A SERVICE MARK OF APPLE INC.