Terms of Service
Last revised: May 10, 2019
These Terms of Service ("Terms") govern your access or use, from within the United States and its territories and possessions, of the applications, websites, content, products, and services made available in the United States and its territories and possessions by Foodie LLC and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, "Foodie"). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND FOODIE. In these Terms, the words "including" and "include" mean "including, but not limited to."
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Foodie may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Foodie is an online marketplace that allows users to offer, buy and sell food in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer.
While we may provide pricing, listing and other guidance in our Site or Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Foodie has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
In connection with using or accessing the Site or Services you will not:
- · post, list or upload content or items in inappropriate categories or areas on our sites;
- · breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
- · use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
- · fail to pay for items purchased by you, unless you have a valid reason, for example, the seller has materially changed the item's description after you purchase, a clear typographical error is made, or you cannot contact the seller.
- · fail to deliver items sold by you, unless you have a valid reason, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
- · manipulate the price of any item or interfere with any other user's listings;
- · post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
- · take any action that may undermine the feedback or ratings systems;
- · transfer your Foodie account (including Feedback) and user ID to another party without our consent;
- · distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
- · distribute viruses or any other technologies that may harm Foodie or the interests or property of users;
- · use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of Foodie;
- · interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
- · export or re-export any Foodie application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
- · infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to Foodie. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Foodie or someone else;
- · infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post, list or upload content that does not belongs to you;
- · commercialize any Foodie application or any information or software associated with such application, except with the prior express permission of Foodie;
- · harvest or otherwise collect information about users without their consent; or
- · circumvent any technical measures we use to provide the Services.
Sellers must meet commercially reasonable minimum performance standards. Failure to meet these standards may result in Foodie charging you additional fees, and/or limiting, restricting, suspending your seller account.
If we believe you are abusing Foodie in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating the policy on offers to buy or sell outside of Foodie, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement. If you are a seller and you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Foodie, you may be liable to pay a final value fee applicable to that item, even if the item does not sell.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
Account Registration and Security Responsibilities
In order to access certain parts of the Foodie Service, you may be required to create a Foodie user account, a seller payment account with Stripe, Inc. (“Stripe”). In connection with creating a user account, Stripe Account, you must provide certain information (“Registration Data”) and answer all questions or fields marked “required.” You agree to: (a) provide true, accurate, current and complete Registration Data; (b) maintain and update such Registration Data to keep it true, accurate, current and complete; (c) maintain the security of your user account, the Stripe Account, including by maintaining the security and confidentiality of your login credentials; and (d) consent to allow Foodie to contact you for the purpose of confirming some or all of your Registration Data, to conduct research and to resolve disputes, as Foodie may elect to do from time to time.
Foodie Payment Solution.
A buyer and seller may instead pay with and accept credit cards and other electronic payment methods (each an “Electronic Payment Method”) through the Foodie Service. Foodie has integrated with Stripe, payment processing services, to allow sellers to accept certain Electronic Payment Methods from buyers using Stripe’s payment processing services (“Foodie Payment Solution”). Buyers who wish to use the Foodie Payment Solution must register an Electronic Payment Method with Foodie, and sellers must enroll for the service through Stripe. Enrollment in and usage of the Foodie Payment Solution is voluntary, so buyers should note that some sellers may not accept Electronic Payment Methods, or may only accept Electronic Payment Methods for certain transactions. Foodie, in its sole discretion, may from time to time impose limits on your ability to make and/or receive payments through the Foodie Payment Solution. Additionally, Stripe may impose its own limits and limitations on a seller’s use of the Foodie Payment Solution. For instance, a seller’s enrollment in the Foodie Payment Solution is subject to Stripe’s confirmation that the seller meets Stripe’s enrollment criteria. Sellers should refer to Section 2(d) below for information about the impact of failing to meet Stripe’s enrollment criteria.
- 1. Compliance with Laws. As noted above, sellers are solely responsible for compliance with all applicable laws, rules, regulations and local ordinances, including without limitation, obtaining necessary permits and/or licenses, including business licenses, alcohol licenses and any other applicable license, compliance with fire codes, zoning ordinances and any required or applicable health and safety rules, regulations or inspections (collectively, “Regulations”), collection and payment of any applicable taxes or other payments that may be applicable to listings. Foodie makes no representation relating to and does not offer any opinion, recommendation, or advice regarding the legality of, tax implications and liabilities of, or any licenses, permits or other consents that may be necessary to provide any listing. Should you have any questions regarding laws or regulations applicable to providing food or listing or regarding consents/applications/licenses necessary to provide any food or listing, you should consult your own legal counsel. You further agree that you, as a seller, are solely responsible for your listing and agree to indemnify, defend and hold harmless Foodie from any claims, suits, losses, damages, costs and expenses (including reasonable attorneys' fees) relating to or arising from your listing, including any violation of any Regulations, or other taxes and payments which may be applicable to your listing.
- 2. No Identity Verification by Foodie. You acknowledge and understand that Foodie does not attempt to confirm, and does not confirm, any user's (whether seller or buyer) purported identity. We do not investigate any user's reputation, conduct, morality, criminal background or verify the information that any user submits to the Site. We do not endorse any persons who use or register for the Services, whether as seller or buyer. You are responsible for determining the identity and suitability of others whom you may contact or who may contact you by means of the Site. You agree to exercise caution and good judgment in all interactions with other users. Foodie encourages you to communicate directly with others through the tools available on the Site and to review your Sellers' profile pages for feedback from other users. You may also wish to consider using a third-party service that provides additional user verification.
- 3. Release of Liability and Hold Harmless. To the extent permitted under applicable laws, you hereby release Foodie from any liability related to: (i) any incorrect or inaccurate content posted on the Services, whether caused by us or any user of the Services, or by any of the equipment or programming associated with or utilized in the Services; (ii) the conduct, whether online or offline, of any sellers or buyers; (iii) any injury, loss or damage caused by another user, a listing, any food, or content posted on the Services, whether online or offline; and (iv) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services' users' communications. If you are a California resident, you hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND SERVICES AND ANY CONTENT OR INFORMATION PROVIDED BY THE SITE OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND FOODIE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITE AND SERVICES AND ANY CONTENT OR INFORMATION PROVIDED BY THE SITE OR SERVICES EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT. FOODIE DOES NOT WARRANT THAT THE SITE OR SERVICES OR ANY CONTENT PROVIDED BY THE SITE OR SERVICES, INCLUDING ANY USER CONTENT, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TYP OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY.
- 4. Limitation on Liability. NEITHER FOODIE, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR USE OF THE SITE OR SERVICES OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY CONTENT OR OTHER INFORMATION AVAILABLE ON THE SITE OR SERVICES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE. THE FOREGOING WILL APPLY EVEN IF FOODIE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE SITE OR SERVICES OR THESE TERMS YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE SITE OR SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS') LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO ONE HUNDRED US DOLLARS ($100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FOODIE AND YOU.
THE SITE AND SERVICES
- 1. Licenses. Subject to these Terms, Foodie grants you a non-transferable, non-exclusive, license to use the Site and Services for your personal use. You consent to Foodie photographing and/or recording your participation in a listing (whether you are a seller or buyer) and further agree that: (1) any such image, recording or video (collectively “Recording”) will be owned exclusively by Foodie; (2) to the extent that your name, likeness, biography and / or voice appears in any such Recording, you grant to Foodie an unrestricted, perpetual, worldwide right to use your Image as contained in the Recording in all media now known and later developed for any purpose, including for the purpose of promoting the Site and Services.
- 2. Restrictions on Use. The rights granted to you in these Terms are subject to the following restrictions: (i) you will not license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Site or Services; (ii) you will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site or Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (iii) you will not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such), and any such use is expressly unauthorized; (iv) you will not access the Site or Services in order to build or promote a similar or competitive website, application, or service; and (v) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services will be subject to the Terms. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. Foodie makes no representation that the Site or Services are appropriate for use in locations other than the United States. Foodie reserves the right in its sole discretion to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice at any time for any reason. You agree that Foodie will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
- 3. Ownership. Except with respect to your User Content (as defined below), you agree that (i) the Site and Services are and will remain the sole property of Foodie and is subject to protection under U.S. and foreign copyright laws and (ii) Foodie (and its licensors, where applicable) owns all right, title and interest, including all related intellectual property rights, in and to the Site and Services. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such Site or Services. The Foodie name, logo, and the product names associated with the Site or Services belong to Foodie (or its licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Foodie (and its licensors, where applicable) reserves all rights not granted in this Agreement.
- 4. Updates. As detailed further below, Foodie provides the Site and Services on an “AS-IS” basis. You agree that Foodie is not obligated to create or provide any support, corrections, maintenance, updates, upgrades, bug fixes, and/or enhancements of the Site or Services (each an “Update”). However, in the event Foodie decides to offer an Update, you agree that Foodie may amend these Terms in connection with such Update without specific notice to you other than a written notification upon order checkout (and a box you will have to check) and that your use of the Site or Services following such Update is conditioned upon your acceptance of any revised Terms. By using the Site or Services following an Update, you are representing that you have reviewed the then-current version of the Terms and agree to be bound by such version. All Updates will be governed by the version of these Terms published by Foodie as of the date you use the Site or Services following such update.
- 5. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to us (“Feedback”) is at your own risk and that Foodie has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Foodie a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights.
- 1. In General. In order to use certain aspects of the Services, you may have to register for an account with us (“Account”). To create an Account, you must provide certain information about yourself as prompted by the registration process on the Site. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Foodie of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Foodie cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. You may not have more than one Account. You agree not to create an Account or use the Site or Services if you have been previously removed by us or banned from any of the Services. Foodie reserves the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Site or Services (or any portion thereof) at any time for any reason. You agree that Foodie will not be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the Site or Services (or any portion thereof). Information on your profile will include information and content you provide and/or upload as well as information we collect from your account with social networking sites (each an “SNS”) (“Profile Information”). Foodie reserves the right in its sole discretion to remove Profile Information at any time for any reason. You agree that Foodie will not be liable to you or to any third party for such removal.
- 2. Social Networking Sites. The Services may allow users to connect with various SNSs. By connecting your SNS account, you represent that you are entitled to grant us access to your SNS account without breach by you of any SNS terms and conditions and without obligating us to pay any fees or making us subject to any usage limitations. By granting Foodie access to your SNS account, you understand that we may access, make available, and store any information, content, or other materials that you have provided to or stored in your SNS account (“SNS Content”) accessible through the Site and Services so that it is available on your Account. Unless otherwise specified in the Terms, all SNS Content will be deemed your User Content (as defined below) for all purposes of the Terms. PLEASE NOTE THAT YOUR RELATIONSHIP WITH EACH SNS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS, AND WE DISCLAIM ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY AN SNS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN THE SNS. Foodie makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Foodie is not responsible for any SNS Content.
- 1. Your User Content. “User Content” means any and all information and content that a user posts, list, uploads or submits to, or uses with, the Site or Services. You are solely responsible for your User Content. You assume all risk associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You herby represent and warrant that your User Content does not violate our Acceptable Use Policy. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Foodie. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Foodie is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. Foodie has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit or receive transmission of User Content; or the security, privacy, storage or transmission of other communications originating with or involving use of the Site or Services. You acknowledge that Foodie has no obligation to pre-screen User Content, although Foodie reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICES THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE WILL BE ACCESSIBLE BY USERS OF THE SITE OR SERVICES.
- 2. License to User Content. You hereby grant, and you represent and warrant that you have the right to grant, to Foodie an irrevocable, nonexclusive, perpetual, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display, modify, adapt and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (in whole or in part), and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site and Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
- 3. Ownership. Each user owns its own User Content. By making available your User Content on or in the Site or Services, you represent that you own or have all rights necessary to make available your User Content.
- 4. Content Provided by Other Parties. The Site and Services may contain User Content provided by other users or third parties. We are not responsible for and do not control such content. We have the right, but no obligation to review or monitor such content. We do not approve, endorse or make any representations or warranties with respect to such content. You use all such contact at your own risk.
Acceptable Use Policy
The following sets forth Foodie’s “Acceptable Use Policy”:
- 1. In General. As a condition of use, you agree not to use the Site or Services for any purpose that is prohibited by the Terms or by applicable law. You will not (and will not permit any third party) either (i) take any action or (ii) make available any User Content on or through the Site or Services that:
- (a) violates 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;
- (b) is unlawful, harassing, threatening, abusive, harmful, defamatory, trade libelous, deceptive, fraudulent, false, intentionally misleading, pornographic, invasive of another's privacy, vulgar, profane, tortious, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable;
- (c) is harmful to minors in any way;
- (d) is in violation of any law, regulation or obligations or restrictions imposed by any third party;
- (e) constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages (commercial or otherwise);
- (f) involves commercial activities and/or sales without Foodie's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- (g) impersonates any person or entity, including, but not limited to, any employee or representative of Foodie, or falsely state or otherwise misrepresents yourself or your affiliation with any person or entity;
- (h) interferes with or attempt to interfere with the proper functioning or uses of the Site or Services in any way not expressly permitted by Foodie;
- (i) interferes with another user's use and enjoyment of the Site or Services;
- (j) harvests, collects, gathers or assembles information or data regarding other users, including e-mail addresses, without their consent;
- (k) displays, mirrors, or frames the Site or Services;
- (l) attempts or engage in, any potentially harmful acts that are directed against the Site or Services, including but not limited to (i) violating or attempting to violate any security features of the Site or Services; (ii) using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Site or Services; (iii) introducing viruses, worms, Trojan Horses, or any software intended to damage or alter a computer system or data; (iv) interfering with, disrupting, or creating an undue burden on servers or networks connected to the Site or Services; (v) interfering or attempting to interfere with the use of the Site by any other user, host, or network, including without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” “pinging,” or “crashing” the Site or Services; (vi) causing, allowing or assisting machines, bots, or automated services to access or use the Site or Services without the express written permission of Foodie; (vii) attempting to probe, scan, or test the vulnerability of the Site or Services, or any associated system or network, or breach any security or authentication measures; (viii) reverse engineering, decompiling, disassembling, deciphering, or otherwise attempting to derive the source code for any underlying intellectual property used to provide the Site or Services; (ix) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting; or (x) violate the regulations, policies or procedures of such networks, attempting to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means.
- 2. Community Interactions. The Site may include various areas that enable you to post information, provide feedback, recommendations, reviews, and comments, and otherwise interact with other users, either through postings or by interacting in real-time (the “Community Interactions”). In connection with such Community Interactions, you agree to abide by any rules that Foodie publishes in connection therewith, including but not limited to, the prohibition on use of the Site or Services for any unlawful purpose. Although Foodie may from time to time review the Community Interactions, you acknowledge and agree that Foodie is under no obligation to monitor or control, and will have no liability for, any information available via the Community Interactions. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Community Interactions are those of their respective authors who are solely responsible and liable for their content. Foodie reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Interactions.
- 3. User Conduct. You are solely responsible for all User Content that you post, list or upload or email or otherwise use via the Site or Service. Foodie reserve the right (but has no obligation) to monitor or review the Site or Services and User Content at any time, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your account, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy, any other provision of the Terms, any applicable law or otherwise create liability for us or any other person.
- 1. Purchases. The Site enables Sellers to connect with and provide food to Buyers. Since each Seller is solely responsible for all out-of-pocket costs involved with each listing, the Site enables Sellers to set a price for their listing. The minimum listing price shall be $0.50. Each Buyer will pay the price for each listing upon purchase or commitment of purchase. By purchasing or committing to purchase a listing, you agree that your payment card or other payment means may be charged for the full amount of the purchase price plus any addition taxes or fees upon purchase. A portion of your price may be remitted to cover any fees, with the remainder to the Seller upon pick up. Purchases are non-refundable.
- 2. Fees. Creating an account and searching for listings are free. Foodie does, however, charge a fee to Sellers and Buyers for using the Services. These fees are assessed when a transaction between a Seller and Buyer occurs. The fees Foodie charges Sellers are currently the greater of 10% of the total sum of the listing purchase or $0.50, which we may change from time to time. The fees Foodie charges Buyers are currently the greater of 5% of the total purchase price or $0.50, which may change from time to time. Changes to that schedules are effective after we provide you with at least thirty (30) days' notice by posting the changes on the Site. Foodie may choose to temporarily change the fees, waive the fees or offer discounts for the Services, promotional events or new services, which may be subject to additional terms and conditions.
- 3. Payment Information. All payment information that you provide in connection with the Site or Services must be accurate, current and complete. By purchasing or committing to purchase from a listing, you authorize your payment card to be charged in accordance with this Section. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT MEANS USED TO PAY ANY CONTRIBUTION. You will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless Foodie from any and all taxes, including sales tax, based on any payments made by you in connection with the Site or Services.
- 4. Mobile Text Message Terms. The following terms apply to everyone who signs up to receive one or more SMS or MMS message and/or messages from Foodie or sends us messages via SMS or MMS.
When you sign up for Foodie's SMS list, or purchase or commit to purchase from a listing, you are expressly consenting to receive text messages on behalf of Foodie, containing information about upcoming listings or listings that you have purchased or committed to purchase, in the following manner (the “Text Services”):
- (a) If you are a Seller you will receive a text message notifying you each time a potential Buyer purchases or commits to purchase, including Buyer’s details such as the number of servings requested.
- (b) If you are a Buyer or potential Buyer, you will receive a text message notifying you of information regarding any listing to which you have purchased or committed to purchase, such as pickup information.
- (c) If you signed up for our SMS list, you may receive text messages a couple times per week notifying you of upcoming listings.
- (d) You may opt out of the Text Services at any time by texting the word STOP from the enrolled mobile device. If you do that, you will receive one additional message confirming that you will no longer receive messages from Foodie regarding listings. If you need help with our Text Services, you may contact us through our contact form.
- (e) We do not charge a fee for the Text Services; however, depending on your messaging plan, your mobile carrier may charge you for each message we send you or that you send us. It is your responsibility to know whether your carrier will charge you per-message costs (for instance, if you do not have an unlimited texting plan, or have exceeded your monthly quota of free messages). We assume no responsibility for charges incurred by your using the Text Services.
- (f) The Text Services may not be available in all areas at all times. This means we may not be able to successfully transmit SMS/MMS messages to you, and we have no liability for any such transmission delay or message failure. The Text Services may not work in the event of product, software, coverage, or other changes made by your wireless carrier or changes you make to your mobile device. You must provide your own wireless device, subscribe to a wireless service on a participating mobile carrier, and be able to receive text messages using that wireless device and your carrier's service.
- 5. Listings. By listing, or purchasing or committing to purchase a listing, you agree to, and at all times during purchasing process will, comply with the Foodie's Acceptable Use Policy and the Rules. In the event you share any items from the listing with someone, bring someone with you to pick up the listing or have someone, pick up the listing for you, you agree that you will notify, and make this person or persons (“Your Guests”) aware of the Acceptable Use Policy and the Rules. You acknowledge and agree that you will be responsible for and will ensure that Your Guests comply with the Acceptable Use Policy and the Rules. You further acknowledge and agree that you, not Foodie, will be fully responsible and liable for all acts and omissions of Your Guests. As such you agree to indemnify, defend and hold harmless the Foodie, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (“Released Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) (“Claims”) relating to or arising out of your and/or Your Guests' alleged (i) breach or violation of any covenant, obligation or terms and conditions in these Terms or the Acceptable Use Policy and the Rules, (ii) negligence of misconduct, and/or (iii) violation of any applicable law during the purchasing process. You further agree to indemnify, defend and hold harmless the Released Parties from and against any Claim made by Your Guest(s) arising out of or in connection with any listing, including any losses, personal injuries, death, or any other occurrence or event whatsoever. Notwithstanding the foregoing, you will have no indemnification obligation under this Section with respect to any Claims based upon or arising in whole or in part from the gross negligence or willful misconduct of Foodie.
- 6. Indemnification. You agree to indemnify and hold the Released Parties harmless from any Claims relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the Site or Services; (c) your violation of the Terms; (d) your violation of any rights of another party, including any users; (e) your interaction with any other user; (f) your violation of any applicable laws, rules or regulations; or (g) any harm that may be caused to other users by the listings that you sell on the Site. Foodie reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Foodie in asserting any available defenses. You agree not to settle any matter without the prior written consent of Foodie. Foodie will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Site or Services.
Foodie respects the intellectual property of others and asks that users of our Site and Service do the same. In connection with our Site and Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) must be provided to our designated Copyright Agent:
- · an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- · a description of the copyrighted work or other intellectual property that you claim has been in fringed;
- · a description of where the material that you claim is infringing is located on our site, with enough detail that we may find it on the website (in most circumstances, we will need a URL);
- · your address, telephone number, and email address;
- · a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- · a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
In some circumstances, in order to notify the account holder who provided the allegedly infringing content to which we have disabled access, we may forward a copy of a valid Notice including name and email address to the account holder.
Foodie's Copyright Agent to receive DMCA takedown notices is:
10260 SW Greenburg Road,
Portland, OR 97223
You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
TERM AND TERMINATION
Subject to this Section, these Terms will remain in full force and effect while you use the Site or Services. You may terminate your Account at any time, for any reason, by following the instructions on the Site. Foodie may, in its sole discretion, suspend your rights to use the Site and/or Services and/or suspend, disable, or delete your Account (or any part thereof) at any time for any reason. Upon termination of these Terms, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated therewith from our live databases; however, we reserve the right to continue to use your User Content. Foodie will not have any liability whatsoever to you for any termination of the Terms, including for termination of your Account or deletion of your User Content. All provisions of these Terms which by their nature should survive, will survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
DISPUTE RESOLUTION: ARBITRATION, CLASS ACTION WAIVER AND JURISDICTION.
PLEASE READ THIS SECTION CAREFULLY, IT AFFECTS YOUR RIGHTS
Except for a claim by Foodie of infringement or misappropriation of Foodie's intellectual property rights, any and all disputes between you and the Company are subject to mandatory arbitration. We anticipate that most disputes between us can be resolved informally by following the informal dispute resolution process set forth below. In the event that we cannot informally resolve a dispute, then you and Foodie agree to be bound by the agreement to resolve disputes through the binding arbitration process described in this Section. This agreement to arbitrate is intended to be interpreted broadly. The Federal Arbitration Act governs this agreement to arbitrate and the arbitrator, and not any state or federal court, has exclusive authority to resolve all disputes arising between us, including disputes regarding the scope, enforceability and/or applicability of this Agreement. This agreement to arbitrate governs all disputes between us that arise out of or relate to this agreement or the Services, regardless of whether they are based in contract, tort, statute or any other legal theory and expressly includes, but not limited to: (1) claims relating to advertising; (2) claims that arose before this Agreement or any prior agreement; (3) claims that arise after the termination of this Agreement; and (4) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class (“Disputes”)
The only Disputes that are not covered by this Section are: (1) small claims actions; (2) claims to enforce intellectual property rights; (3) claims arising out of or relating to unauthorized use of intellectual property, including but not limited to piracy or theft.
- 1. Informal Dispute Resolution Procedure: Before initiating arbitration, you and Foodie agree to first make a good faith and reasonable attempt to informally resolve any Dispute. You and Foodie agree that informal dispute resolution procedures will begin by one party notifying the other in writing of the nature of the dispute. The written notice of dispute shall contain all information reasonably necessary to engage in good faith negotiations. Consumers invoking this section agree to provide information sufficient to identify the Foodie account at issue as well as the food and seller or buyer at issue, if applicable. If Foodie invokes this procedure, then it agrees to provide contact information for Dispute Resolution as well as information sufficient to put the consumer on reasonable notice of the nature of the Dispute. The parties agree to negotiate in good faith for at least 30 days following the date of the written notice of dispute. If after that period, the Dispute is not resolved, either party may commence arbitration pursuant to the procedure set forth below. Notices of Dispute should be sent to 10260 SW Greenburg Road, 4th Floor, Portland, OR 97223
- 2. Procedure for Binding Arbitration. If the Dispute is not resolved upon expiration of the 30-day period set forth in paragraph 1, above, then either party may elect to commence binding arbitration. YOU AGREE AND UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU AND FOODIE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY. Arbitration shall proceed as follows:
- a. Administration. Arbitration shall be administered by the American Arbitration Association and governed by its Commercial Arbitration Rules and, where applicable, the Supplementary Procedures for Consumer Related Disputes (“Rules”) as modified by this section.
- b. Payment of AAA Fees and Costs. AAA fees and costs. There are filing fees and other costs associated with AAA arbitration. Each party shall be responsible for his, her or its share of the AAA costs and fees as set forth in the AAA rules. In the event that you are unable to pay the AAA costs and fees and you notify Foodie in writing that you are unable to pay the filing and other associated AAA costs and fees, then Foodie will pay those costs on your behalf.
- c. Hearing Procedure. The arbitration will be conducted solely based on written submissions unless the amount in controversy exceeds $25,000 and the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- d. Location. If commenced by a consumer, the arbitration will take place in the county in which you reside at the time the arbitration is filed. If commenced by Foodie, the arbitration shall take place in the county in which you reside unless the amount in controversy exceeds $25,000. In that case, Foodie may elect to have the hearing in in Portland, Oregon.
- e. Class Action Waiver. YOU AND FOODIE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A REPRESENTATIVE OF ANY PURPORTED CLASS OR OTHER TYPE OF REPRESENTATIVE PROCEEDING. This waiver will apply regardless of the type of relief sought (monetary or injunctive) and any relief sought shall be applicable only to you in your individual capacity. No arbitration shall be joined with any other and no aggregate proof or other class action or representative procedure is allowed. Unless all parties agree otherwise, the arbitrator may not consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. Any injunctive relief awarded shall be limited to the extent necessary to resolve the individual Dispute. This arbitration agreement shall be null and void if this subdivision (e) is found to be unenforceable.
- f. Choice of law. The interpretation of this Agreement shall be governed by the Federal Arbitration Act and Oregon substantive law. Any claim that arises out of or relates to the Services and that is subject to arbitration under this provision shall be governed exclusively by Oregon law (including the law of the Ninth Circuit where applicable), without regard to a conflict of law analysis.
- g. Attorneys' fees and costs. If you are the prevailing party in any arbitration, then Foodie will reimburse you for your reasonable attorneys' fees, if any, incurred in prosecuting or defending arbitration under this section. This subdivision (g) does not include any attorneys' fees incurred in any court proceeding that is related to or arises out of the Dispute, including but not limited to fees incurred as a result of a motion to compel arbitration or any post-arbitration challenge to either the arbitration award or the arbitrator's authority that is brought in a state or federal court.
- h. The applicable AAA Rules shall govern any and all aspects of the arbitration that are not otherwise provided for herein.
- 3. Modifications to this Provision. Foodie may modify the provisions of this agreement to arbitrate at any time. However, (1) Foodie will provide written notice of modifications; (2) modifications will become effective 30 days after notice of them is provided; (3) Foodie will not enforce modifications to this agreement to arbitrate to arbitration proceedings pending at the time of the amendment unless all parties consent in writing to the amendment.
- 1. Entire Agreement; Severability; Waiver. These Terms constitute the entire agreement between you and Foodie, and supersedes all prior and contemporaneous discussions between the parties with respect to the subject matter hereof. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. No failure or delay by Foodie in exercising any right hereunder will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 2. Successors; Assignment; Relationship of Parties. This Agreement is binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms or your rights and obligations hereunder without Foodie's prior written consent, and any attempted assignment or transfer in violation of the foregoing will be null and void. Your relationship to Foodie is that of an independent contractor, and neither party is an agent or partner of the other.
- 3. Governing Law and Jurisdiction; For non-arbitable claims, and to the maximum extent permitted by applicable law, the provisions of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Oregon, without regard to principles of conflicts of law. Each of the parties hereto irrevocably and unconditionally confirms and agrees that it is and shall continue to be (i) subject to the jurisdiction of the state courts of the State of Oregon, and (ii) subject to service of process in the State of Oregon. Each party hereto hereby irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction of any state court located in the State of Oregon (the “Oregon Courts”), for any actions, suits or proceedings arising out of or relating to this Agreement or the transactions contemplated by this Agreement (and agrees not to commence any litigation relating thereto except in such courts), and (b) waives any objection to the laying of venue of any such litigation in the Oregon Courts.
- 4. Changes to the Terms. The Terms may be updated from time to time for any reason. We will notify you of any changes to our Terms by posting the new Terms here: Foodie.com. After we make the change and we will change the “Last Revised” date above. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any). Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. Continued use of our Site or Services following notice of such changes will indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
- 5. Contact Information. Foodie's contact information for any end-user questions, complaints or claims with respect to the Site of Services is:
10260 SW Greenburg Road,
Portland, OR 97223