Terms of Service
Last updated: 12/02/2016
Thanks for using FoodFli. These Terms of Service are a legally binding agreement between you (“you”, “your”) and FoodFli, Inc. (“FoodFli,” “we,” “our,” or “us”) and govern your use of FoodFli’s website at www.foodfli.com, and our services mobile applications (“Apps”), websites, software, and other products and services (collectively, with the Site, the “Service”).
Agreement Overview. As provided in greater detail in these Terms, you agree and acknowledge that these Terms include the following provisions:
- disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THESE TERMS, YOU AND FOODFLI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury;
- the Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms;
- your use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
- FoodFli is not a restaurant and does not prepare or handle Food. FoodFli is not responsible for any restaurant’s Food quality, preparation or safety. FoodFli is under no obligation to verify menu items, allergens or availability;
- If you are a Merchant and you wish to sell Food through the Service, then unless otherwise agreed upon in writing with us, you must comply with our Merchant Terms. (“Merchant Terms”);
- the Service is provided “AS IS” and “AS AVAILABLE” without warranties of any kind and FoodFli’s liability to you is limited; and
- if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple,” below.
FoodFli is a platform that allows our users to order food, beverages and other related items (collectively, “Food”) from restaurants and other food merchants and establishments (collectively, “Merchants”). We do not own the Merchants that are available on our site and we do not prepare or handle Food. Merchants operate their businesses independently and enter into agreements with us to permit their Food to be ordered through the Service. Merchants are solely responsible for complying with all applicable laws, rules and regulations pertaining to the preparation, sales, and marketing of Food, and we do not take steps to independently verify a Merchant’s compliance with such laws, rules and regulations. We are not responsible for, and hereby disclaim all liability related to, the quality, integrity, classification, preparation or safety of any Food you may order through the Service, and we do not guarantee that any information a Merchant posts on the Service regarding Food is accurate. For purposes of clarity, we do not verify menus, food descriptions, allergen listings, pricing, availability or any other information about Merchants on the Service.
If you create a Merchant account on the Service, then unless otherwise agreed upon in writing with FoodFli, you agree to abide by our Merchant Terms.
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Service; and (iii) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service or creating an account on behalf of an entity, organization, or company (“Organization”), the individual accepting these Terms on behalf of the Organization represents and warrants that they have authority to bind such Organization to these Terms. In such a case, references to “you” in these Terms, the Merchant Terms (if applicable) and any other agreement between you and FoodFli shall be construed to mean you as an individual, the Organization, and any other individual that uses the FoodFli Service on the Organization’s behalf and you agree to be bound by these Terms. You may only use the Service to order Food if you are the authorized holder of the credit card used for payment or an authorized user of a corporate account and if you are able to form a binding contract with us.
4. Account Information
To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. By signing up for our Service, you agree to provide true, accurate, current, and complete account information. You also agree to maintain and promptly update your account information in order to ensure that it remains true, accurate, current, and complete.
FoodFli may add, modify, or remove features and functionality related to the FoodFli Service at any time and for any reason and FoodFli reserves the right to discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. Periodic updates may be made to our Service, so you may need to install a new or updated version of our software before you can receive the benefit of those changes.
We may change these Terms from time to time on a going-forward basis and in these events will use reasonable efforts provide notice that we deem to be reasonable under the circumstances. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 5.0, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose
6. Pricing; Payment
- Fees for Use of the FoodFli Service. Certain features of the Service may require you to pay fees. Currently, we only charge Merchants service fees for orders that are placed through the Service. However, you understand and agree that we may change our pricing model to use our Service as we deem necessary or appropriate for the business in our sole discretion. All fees are in U.S. Dollars and are non-refundable. Unless otherwise agreed upon in writing, the fees charged for use of the FoodFli service are posted on the Service and are subject to change at FoodFli’s discretion. We encourage you to check the Service periodically for current pricing information. FoodFli may change the fees for any feature of the Service, including by adding additional fees or charges; provided that FoodFli gives you advance notice of changes before they apply.
- Fees for Ordering Food. The prices posted for menu items are set at the sole discretion of the Merchants you are ordering from. You agree to pay applicable charges for any orders placed, including the price of the items ordered, applicable taxes, and any other applicable fees (e.g. tips). If you order from a “Full Service” establishment through the Service, you may have the ability to order multiple courses during your dining experience. Once all orders have been submitted, you will still need to enter your preferred tip to close out your order. If you do not enter your preferred tip, we will assess an automatic 25% tip to close out your order. Please note that fees for ordering Food are in U.S. dollars. FoodFli does not issue refunds or purchases made through our Service unless authorized by the applicable Merchant. Refunds are issued at the sole discretion of the Merchant you ordered your Food from. You may contact a Merchant directly to inquire about a refund.
- Promotions. FoodFli, in its sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to you, will have no bearing whatsoever on your offer or contract.
- Authorization. You authorize FoodFli and our third party payment processor(s) to charge all sums as described in these Terms or published on the website for the orders that you make and any level of Service you select, to the preferred payment method designated in your account. If you pay any fees with a credit card, FoodFli or its payment processor(s) may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
- Delinquent Accounts. FoodFli reserves the right to suspend or terminate Service for any accounts for which any amount is due but unpaid. In addition to the amount due for the Service, such accounts will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees.
7. Feature Requests; Feedback
We are open to feedback and suggestions on how we can improve our Service. Please contact us at email@example.com should you have any requests. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then (a) you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone, and (b) you hereby grant FoodFli and our successors and assigns an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
We cannot guarantee that we’ll be able to accommodate a feature request and do not guarantee that you’ll receive a response to your request.
8. Term and Termination
These Terms are effective beginning when you accept the Terms or download, install, access or use any portion of the Service, and ending when terminated as set forth in this Section. You’re free to stop using our Service at any time, unless otherwise specified in writing. You may terminate your account and these Terms in accordance with the foregoing by contacting customer service at firstname.lastname@example.org. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, FoodFli may, at its sole discretion, terminate these Terms, your FoodFli account or suspend or terminate your access to the Service at any time for any reason. Should such an incident arise, we may, in our discretion, take reasonable steps to notify you of this termination by email, phone, or through any other communication method that we deem reasonable.
Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Service; (ii) you will no longer have access to your account; (iii) you must remit to FoodFli any unpaid amounts due prior to termination. All payment obligations accrued prior to termination and Sections 1.0, 2.0 and 5.0 through 22.2 will survive any termination of these Terms
9. Location Based Service
Some of the features of the Service may enable FoodFli to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, which enable FoodFli to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. If you choose to disable any Location-based Service on your device, you will not be able to utilize certain features of the Service. By enabling Location-based Service, you agree and acknowledge that: (i) device data we collect from you is directly relevant to your use of the Service; (ii) FoodFli may provide Location-based Service related to and based on your then-current location; and (iii) FoodFli may use any such information collected in connection with provision of the Service.
10. No Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND YOUR USE OF THEM IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, FOODFLI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
TO THE FULLEST EXTENT PERMITTED BY LAW, FOODFLI DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL (1) MEET YOUR REQUIREMENTS; (2) BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, (3) BE ACCURATE OR RELIABLE, (4) THAT THE QUALITY OF ANY FOOD, PRODUCTS, SERVICES, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE FOODFLI SERVICE WILL MEET YOUR EXPECTATIONS, OR (5) THAT ANY ISSUES OR ERRORS WILL BE CORRECTED.
You acknowledge that FoodFli may use third party suppliers to provide hardware, software, networking, connectivity, storage, and other technology in order to provide Service. The acts and omissions of those third party suppliers may be outside of FoodFli’s control, and FoodFli WILL NOT BE LIABLE for any loss or damage suffered as a result of any act or omission of any third party supplier.
All third party hardware and other products included or sold with the Service are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. FOODFLI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR FOODFLI ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FOODFLI ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THE MATERIALS OR CONTENT.
NOTWITHSTANDING THE FORGOING FOODFLI DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT FOODFLI IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
You are responsible for safeguarding your password and for restricting access to the Service from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or FoodFli Account or any other security breach.
We reserve all rights not expressly granted to you in these Terms. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by FoodFli are protected by intellectual property and other laws. We (or our licensors) own all rights, title, interest, copyright and other worldwide Intellectual Property Rights in the Materials and Service and all copies of the Materials and Service. These terms do not grant you any rights to our trademarks or service marks.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
13. Your License
- Limited License. Subject to your complete and ongoing compliance with all the Terms, FoodFli grants you: (i) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install a reasonable number of copies of the App which are downloaded from a legitimate marketplace, and to use such App(s) so installed or that may have been pre-installed on your device, solely in object code format and solely for your personal, non-commercial use for lawful purposes, on mobile devices that you own or control, and (ii) permission to access and use the Service for your personal use.
- License Restrictions. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the App or any part of the Service; (b) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App or the Service, or make or attempt to make any modification to or derivative work of the App or the Service; or (c) interfere with or circumvent any feature of the App or the Service, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by FoodFli (unless provided with separate terms). If we make updates or modifications to the App available, you may be required to install the updated or modified App to continue using the Service. Any such software updates may be subject to additional terms made known to you at that time. If you are prohibited under applicable law from using the App or the Service, you may not use them.
- Carrier Service and Fees. Unless otherwise agreed upon in writing between you and FoodFli, FoodFli will not provide you with the equipment to use the App. You are responsible for complying with any third party terms of service and paying all fees charged by third parties to access and use the App (e.g., charges by Carriers). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as data, SMS, MMS, roaming, and other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.
14. Third Party Services and Software
FoodFli may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on FoodFli with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Service are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
15. Transactions Involving Alcohol
The FoodFli service allows Merchants to upload menu items and set restrictions on what customers can order. Merchants may give users the option to order alcohol through the Service; provided that Merchant will ensure that ordering alcohol through the service is legal in the applicable jurisdiction(s) where Merchant is located.
If you use the Service to order alcohol, you and any other alcohol recipient must be at least 21 years old and present valid photo identification verifying you and such other recipient’s age at the time of receiving the alcohol. If you do not comply with these terms, you agree that alcoholic beverages will not be provided to you by the Merchant, and you further agree to forfeit the cost of such alcoholic beverages. You acknowledge and agree that a Merchant may decline to serve you alcohol in the event that you are visibly inebriated or a Merchant has reason to believe that serving you alcohol would pose a danger to yourself or a third party, or violate any applicable laws, policies or regulations.
16. User Content
- User Content Generally. Certain features of the Service may permit users to upload content to the Service, including menus, photos, messages, reviews, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
- Limited License Grant to FoodFli. By submitting, posting or publishing User Content, you grant FoodFli a worldwide, non-exclusive, royalty-free, irrevocable, perpetual, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any formats and through any media channels now known or hereafter developed.
- Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
- User Content Representations and Warranties. We expressly disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By submitting, posting, publishing or sharing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize FoodFli and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by FoodFli, the Service, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and
- your User Content is accurate and up to date, is not fraudulent, misleading, unlawful, inappropriate, or obscene, and does not violate any law or regulation, or constitute false advertising or any other unfair business practice.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. FoodFli may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against FoodFli with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, FoodFli does not permit copyright-infringing activities on the Service.
- Backups. You are solely responsible for maintaining backups of your User Content outside the Service, and FoodFli will have no liability whatsoever to you arising out of or in connection with any loss, compromise, or corruption of any data you may submit, receive, transmit, or store through the Service. Once you terminate your account, you may no longer have access to retrieve or obtain any of your User Content.
17. Digital Millennium Copyright Act
- DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
16356 N. Thompson Peak Pkwy Unit. 2060
Scottsdale, AZ 85260
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
- Repeat Infringers. FoodFli will promptly terminate the accounts of users that are determined by FoodFli to be repeat infringers.
You may not, nor may you assist or permit any third party, directly or indirectly, to:
- Access the App or Service using a third-party's account/registration without the express consent of the account holder;
- Use the Service for any illegal purpose or activity, including the sale of goods or Food in violation of applicable law or ordinance, or otherwise use the Service in violation of any local, state, national, or international law;
- Use the Service in any way that exposes you, other FoodFli users, our partners, or FoodFli to harm;
- Perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
- Post reviews of any Merchants for which you have received payment or anything else of value from a third person;
- Create any Merchant reviews for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Service;
- Harass, annoy, intimidate or threaten any Merchant or user of the FoodFli Service;
- Use any information obtained from the Service in order to advertise to, solicit, or sell to any user or Merchant (other than through the ordering functionality of the Service);
- Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- Post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing , threatening, embarrassing, hateful, or otherwise inappropriate;
- Interfere with security-related features of the Service or work around, bypass, or circumvent any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble, or otherwise reverse engineer the FoodFli Service (except and only to the extent that such activity is expressly permitted by applicable law);
- Access or monitor any material or information on any FoodFli system using any manual process or robot, spider, scraper, or other automated means;
- Perform or attempt to perform any actions that would interfere with the proper working of the FoodFli Service, interfere with another users enjoyment of the Service, or impose an unreasonable or disproportionately large load on our infrastructure, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) collecting personal information about another user or third par ty without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
- Copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell, or distribute in any way material, information or Service from FoodFli;
- Sell or otherwise transfer any rights granted to you under these Terms or any right or ability to view, access, or use any Materials or the Service;
- Use the Service in a way that distracts or prevents you from obeying traffic or safety laws;
- Use the Service for the sale of tobacco or firearms, firearm parts, ammunition, weapons, or other devices designed to cause physical harm;
- Otherwise use the Service except as expressly allowed under these Terms and any applicable Additional Terms; or
- Attempt to do any of the acts described above.
You are responsible for your use of the Service, and, to the fullest extent permitted by law, you will defend and indemnify FoodFli and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “FoodFli Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs (“Claims”) brought by a third party arising out of or connected with: (a) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (b) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (c) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims.
20. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FOODFLI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, ANY FOOD OR OTHER ITEMS ORDERED THROUGH THE SERVICE, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FOODFLI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 21.0, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FOODFLI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FOODFLI FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20.0 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Generally. In the interest of resolving disputes between you and FoodFli in the most expedient and cost effective manner, you and FoodFli agree that every dispute arising in connection wi th these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FOODFLI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT. Despite the provisions of this Paragraph, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and FoodFli will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting FoodFli. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or electronic mail (“Notice”). FoodFli's address for Notice is: FoodFli, Inc., 16356 N. Thompson Peak Pkwy Unit. 2060 Scottsdale, AZ 85260 or email@example.com. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or FoodFli may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or FoodFli must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, FoodFli will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by FoodFli in settlement of the dispute prior to the arbitrator’s award; or (iii) $15,000.
- Fees. If you commence arbitration in accordance with these Terms, FoodFli will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Maricopa County, Arizona, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be govern ed by the AAA Rules. In that case, you agree to reimburse FoodFli for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND FOODFLI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and FoodFli agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this paragraph is found to be unenforceable or if the entirety of this Section 21.0 is found to be unenforceable, then the entirety of this Section 21.0 will be null and void.
- Modifications to this Arbitration Provision. If FoodFli makes any future change to this arbitration provision, other than a change to FoodFli's address for Notice, you may reject the change by sending us written notice within 30 days of the change to FoodFli's address for Notice, in which case your account with FoodFli will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
22. General Terms
- Governing Law. These Terms are governed by the laws of the State of Arizona without regard to conflict of law principles. You and FoodFli submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Maricopa County, Arizona for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Arizona, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). For Merchants, the Additional Terms include the Merchant Terms, unless otherwise agreed upon in writing with FoodFli. All Additional Terms are incorporated by this reference into, and made a part of, these Terms. In the event of a conflict between these Terms and the Merchant Terms, the Merchant Terms shall prevail.
- Contact Information. The Service is offered by FoodFli, Inc., located at 16356 N. Thompson Peak Pkwy, Unit. 2060, Scottsdale, AZ 85260. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- Notice Regarding Apple. This paragraph only applies to the extent you are using our App on an iOS device. You acknowledge that these Terms are between you and FoodFli only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.