Last updated on January 31st, 2020.
These Foodee Platform and Services Terms of Service (collectively with any Order Forms, the “Agreement”) are an agreement between Customer and Foodee Media Inc., a company incorporated under the laws of British Columbia, with its head office located at 333 Seymour St, Vancouver, BC V6B 5A7, Canada (“Foodee”, “us”, “our”). The term “Customer” refers to the organization that you represent in agreeing to this Agreement. If your account is being set up or order is being placed by someone who is not formally affiliated with an organization, Customer is the individual creating the account or placing the order. Each of Foodee and Customer shall individually be referred to as a “Party” and jointly as the “Parties”. This Agreement is entered into the earlier of: (a) the date Customer first uses any part of the Foodee Platform; (b) the date Customer submits an Order Form; and (c) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
This Agreement governs your access to and use of: (i) the Foodee website located at www.food.ee (the “Website”); (ii) the Foodee online meal ordering tool (the “Foodee Platform”); and (iii) all other products or services (including related delivery and support services) provided by Foodee pursuant to or in connection with the Foodee Platform, as described in this Agreement (collectively, (i) through (iii) are the “Foodee Services”). BY USING THE FOODEE SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 29(i). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE FOODEE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO FOODEE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE FOODEE SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO FOODEE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
- YOU ACKNOWLEDGE AND AGREE THAT RESTAURANTS OFFERING THEIR PRODUCTS AND SERVICES THROUGH THE FOODEE PLATFORM ARE INDEPENDENT PERSONS OR ORGANIZATIONS AND NOT SUBCONTRACTORS, AGENTS, OR EMPLOYEES OF FOODEE AND FOODEE TAKES NO RESPONSIBILITY WHATSOEVER FOR THE SERVICES AND PRODUCTS, INCLUDING MEALS, OFFERED BY THE RESTAURANTS.
Foodee Platform and Services
Subject to Customer’s and its Authorized Users’ compliance with this Agreement:
Foodee will make the Foodee Platform available to Customer, for use in accordance with the Permitted Use, on the terms and conditions set out in this Agreement during the Term. Customer is responsible for identifying and authenticating all Authorized Users, for ensuring only Authorized Users access and use the Foodee Platform, and for Authorized Users’ use of the Foodee Platform in compliance with this Agreement.
Foodee will perform, on the terms and conditions set out in this Agreement, the services and other obligations (including the delivery of Meal Orders) described: (i) on its Website; or (ii) in any order form that references this Agreement or that is otherwise placed by Customer through the Foodee Platform and accepted by Foodee (each, an “Order Form”).
Changes to the Foodee Platform
Foodee reserves the right to change any information, material or content (including features, restaurants, menus, Meals, and prices) contained on or provided through the Foodee Platform (the “Content”) at any time, and from time to time, without notice.
Use of the Foodee Platform
The Foodee Platform is provided solely to: (i) enable you to view, access and browse restaurant Meal menus available to you through the Foodee Platform; (ii) enable you to place orders and pay for Meals (each a “Meal Order”); (iii) enable you to view and access upcoming and past Meal Orders; or (iv) enable you to view, access and maintain your account (collectively, (i) through (iv) constitute “Permitted Use”).
Foodee retains the right, at its sole discretion, to deny you use of the Foodee Platform upon your violation of this Agreement or use of the Foodee Platform other than for the Permitted Use. You will cease and desist from any such access or use of the Foodee Platform immediately upon request by Foodee.
Customer Data; Reservation of Rights
- As used in this Agreement, “Customer Data” means any data, information, content, records, and files that you (or any of your Authorized Users) loads, receives through, transmits to or enters into the Foodee Platform, including any Personal Information. You retain all rights, title and interest, including all intellectual property rights, in and to the Customer Data. Notwithstanding the foregoing and subject to this Agreement, you grant to Foodee throughout the Term a non-exclusive, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, use, process, store, disclose and transmit Customer Data to: (i) provide the Foodee Services; (ii) improve and enhance the Foodee Services and Foodee’s other offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Foodee may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
Suspension of Access; Scheduled Downtime; Modifications
Foodee may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity or under this Agreement:
suspend Customer’s access to or use of the Foodee Platform:
for scheduled maintenance;
due to a force majeure event;
if Foodee believes in good faith that Customer or any Authorized User has violated any provision of this Agreement;
to address any emergency security concerns; or
if required to do so by a regulatory body or as a result of a change in applicable law; and
make any modifications to the Foodee Platform.
Foodee may engage third parties to provide the Foodee Services.
You may sign up for, or Foodee may issue you, an account (the “Foodee Customer Account”) and an associated username and password (a “Foodee User ID”) that will allow you to use the Foodee Platform to add Meals to a Meal Order, place Meal Orders, review your Meal Order history, and manage your account. If applicable, Foodee will also issue a separate Foodee User ID for persons that you authorize to access certain administrative functionality in the Foodee Platform in connection with your Foodee Customer Account, including placing Meal Orders and creating individual user accounts in connection with your Foodee Customer Account (each, an “Account Administrator”, and together with individual users for whom user accounts are created, “Authorized Users”). An Account Administrator may directly provide other Authorized Users with a Foodee User ID.
Authorized Users must keep their Foodee User ID secure and not share their Foodee User ID with anyone else, and you will not collect or harvest any Personal Information, including Personal Information of other Foodee customers or Authorized Users. Notwithstanding the foregoing, and for greater certainty, nothing in this Section will prevent an Account Administrator from sharing a Foodee User ID with other Authorized Users to enable such Authorized Users to add Meals to a Meal Order pursuant to Customer’s Foodee Customer Account, or from accessing the Personal Information of such other Authorized Users, in each case, as and to the extent required to place or fulfil such Meal Order.
Making Meal Orders; Amending Meal Orders; Cancellations and Refunds
Once a Foodee Customer Account has been created, and once you have made your Meal selection, you may checkout the items in your cart by clicking the “Checkout” button. At this time you will have the opportunity to review your cart items. After reviewing your cart items, you will be asked to provide additional delivery details and payment information. Once this additional information has been provided, after all applicable Authorized Users have added Meals to your cart, you may click the “Submit Meal Order” button to submit your Meal Order. You may edit your cart items at any time prior to submitting your Meal Order. Once submitted, your Meal Order will be sent to the applicable restaurant and your payment, as applicable, will be processed. You cannot edit your Meal Order once you have clicked on the “Submit Meal Order” button.
Upon request, a Foodee staff member may provide you with Meal selections in connection with your Foodee Customer Account (each a “Quote”). At this time an email will be sent to you to review and confirm the Meal Order (the “Confirmation Email”). You may click the “Accept” button in the Confirmation Email to submit your Meal Order. Once submitted, your Meal Order will be sent to the applicable restaurant and your payment, as applicable, will be processed. You cannot edit a Quote; however, you may click the “Reject” button in the Confirmation Email to refuse a Quote.
If you wish to amend or cancel your Meal Order, you must contact Foodee via email at firstname.lastname@example.org or by phone at 1.844-8FOODEE. Foodee will use reasonable efforts to make the changes you request but does not guarantee that amendments or refunds will be effected unless Foodee is notified of the change or cancellation of your Meal Order: (i) at least 24 hours in advance of the Meal Order’s delivery date and time for orders of less than 25 people; or (ii) at least 48 hours in advance of the Meal Order’s delivery date and time for orders of 25 people or more.
It is possible that Foodee or the applicable restaurant will be unable to complete your Meal Order as submitted, and in such cases, Foodee will use reasonable efforts to communicate such cancellation to you as quickly as possible. Your payment for such Meal Order will be refunded in the event that the Meal Order is rejected by the applicable restaurant or cancelled by Foodee. THE OBLIGATION TO REFUND PAYMENT IS FOODEE’S SOLE LIABILITY FOR SUCH CANCELLATIONS, AND YOU AGREE THAT NEITHER FOODEE NOR THE RESTAURANT WILL HAVE ANY FURTHER LIABILITY TO YOU FOR MEAL ORDERS THAT HAVE BEEN REJECTED BY THE RESTAURANT OR CANCELLED BY FOODEE.
Fees and Payment
Customer will pay to Foodee the fees described in any Order Form, or otherwise in connection with each Meal Order (the “Fees”). If Customer’s use of the Foodee Services requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
Unless otherwise set out in an applicable Order Form, payment for Meal Orders must be made with an accepted credit card through the Foodee Platform. The Foodee Platform uses a Payment Processing Services Provider, as set out in Section 21 (Payment Processing Services) below, to affect charges onto your credit card. You acknowledge and agree that there may be delays with processing your payments and transactions and that it can take up to 60 days for payment to be processed.
If an alternative payment option is indicated in an applicable Order Form, Foodee will prepare and send to Customer, at the then-current contact information on file with Foodee, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 15 calendar days of the invoice date.
If Customer believes Foodee has charged or invoiced Customer incorrectly, Customer must contact Foodee no later than 15 days after having been charged by Foodee or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
Customer may not withhold or setoff any amounts due under this Agreement. Foodee reserves the right to suspend Customer’s access to the Foodee Platform and any delivery of Foodee Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
Restaurant Menu Prices
Restaurant menu prices listed on the Foodee Platform are set out in Canadian dollars in Canada and in U.S. dollars in the United States, and in each case do not include applicable tax and delivery charges. Taxes and delivery charges will be added as separate line items at checkout and paid by you in addition to the Meal Order price.
Should the restaurant menu display an incorrect price for your Meal Order on the Foodee Platform, Foodee will use reasonable efforts to communicate such error to you as quickly as possible. Foodee or the applicable restaurant is under no obligation to fulfill your Meal Order at the incorrect price. You acknowledge and agree that prices set out on the Foodee Platform may be different than the prices for the same items in a restaurant’s physical location and that any such differences will not entitle you to a refund or a reduction in the price of your Meal Order.
If you have any problems, questions or suggestions with respect to the Foodee Services or your Meal Order, please contact Foodee’s customer care team via email at email@example.com or by phone at 1.844-8FOODEE, from Monday to Friday, 8 am – 10 pm ET (excluding statutory holidays).
The restaurants listed on the Foodee Platform operate independently from Foodee and are solely responsible for preparing and packaging all food, drinks and other products (“Meals”) ordered through the Foodee Platform. Each restaurant is solely liable for the quality and freshness of its products, and Foodee does not verify the credentials, representations, products or prices offered by any restaurants. Foodee is not responsible for the restaurants’ food preparation or safety and does not verify any restaurant’s compliance with applicable laws.
For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Notwithstanding Section 13(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Foodee, to potential assignees, acquirers or successors of Foodee if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Foodee.
Term and Termination; Survival
This Agreement will commence on the Effective Date and will continue in force until terminated by either Party in accordance with the terms and conditions herein. (the “Term”)
Each Order Form, if any, will set out the term of such Order Form and any terms and conditions relating to the renewal of such Order Form. If the Order Form term extends past the termination of the Term, then the terms and conditions of this Agreement that apply to or govern such Order Form will survive the termination of the Term. For greater certainty, no new Order Forms under this Agreement may be entered into between the Parties after the termination of the Term.
This Agreement (or any Order Form) may be terminated by either Party, in its discretion, upon not less than 30 days’ prior written notice to the other Party (which notice may be given by Foodee by email, at your current email address on file with Foodee, or through the Foodee Platform, and which notice may be given by you by email or through any then-available interfaces on the Foodee Platform). Upon termination of this Agreement, you will immediately cease use of the Foodee Platform.
All Content, including all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on the Foodee Platform or otherwise made available as part of the Foodee Services, are owned or licensed by Foodee and are protected by copyright, trade-mark and other intellectual property laws.
Foodee expressly reserves all rights in the Foodee Platform, Foodee Services, Aggregated Data, and all materials provided by Foodee in connection with this Agreement that are not specifically granted to you. You acknowledge that all right, title and interest in the Foodee Platform, Foodee Services, all materials provided by Foodee in connection with this Agreement (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein and thereto will remain with Foodee (or third party suppliers, if applicable), and that the Foodee Platform and all materials provided by Foodee hereunder are licensed and not “sold” to you.
You acknowledge that restaurants may have additional privacy policies or statements which govern their practices in collecting, storing, using and disclosing your Personal Information and you will read such additional privacy policies or statements carefully. It is your responsibility to familiarize yourself with such privacy policies or statements imposed by any restaurant with whom you elect to deal through the Foodee Platform.
No Unlawful or Prohibited Use
You will not, without Foodee’s prior written permission, use the Foodee Platform or the Content for purposes other than Permitted Use.
Without limiting the generality of the foregoing, you will not, and will not permit anyone else to: (i) “frame”, “mirror” or otherwise incorporate the Foodee Platform or the Content or any part thereof on any commercial or non-commercial website; (ii) access, monitor, or copy any part of the Foodee Platform or the Content using any robot, spider, scraper or other automated means or any manual process for any purpose without Foodee’s express written permission; (iii) violate the restrictions in any robot exclusion headers on the Content or the Foodee Platform or bypass or circumvent other measures employed to prevent or limit access to the Foodee Platform; (iv) take any action that imposes, or may impose, in Foodee’s discretion, an unreasonable or disproportionately large load on the Foodee Platform; (v) remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in the Foodee Platform or the Content; (vi) modify or attempt to modify (or permit anyone else to modify or attempt to modify) the Foodee Platform or any restaurant menu, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Foodee Platform; (vii) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Foodee Platform; (viii) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Foodee Platform or the Content; (ix) create derivative works based on the Foodee Platform or the Content, in whole or in part, or decompile, disassemble, reverse engineer or otherwise exploit any part of the Foodee Platform or the Content; (x) use the Foodee Platform in a manner that violates the rights (including intellectual property rights) of any third party; or (xi) upload to or transmit through the Foodee Platform any information, images, text, data, media or other content that is offensive, hateful, obscene, defamatory or violates any laws, in each case as determined by Foodee in its sole discretion.
Third Party Websites
The Foodee Platform may provide links to third party websites. Foodee does not endorse the information contained on those websites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked website is not under Foodee’s control, and if you choose to access any such website, you do so entirely at your own risk.
The downloading and viewing of Content are done at your own risk. Foodee cannot and does not guarantee or warrant that the Foodee Platform or the Content are compatible with your computer system or that the Foodee Platform or the Content, or any links from the Foodee Platform or the Content, will be free of viruses, worms, malware, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system.
Communications Not Confidential
Foodee does not guarantee the confidentiality of any communications made by you through the Foodee Platform. Although Foodee generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Foodee Platform, you understand, agree and acknowledge that Foodee cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Foodee Platform.
Payment Processing Services
Payment processing services for the Foodee Services are provided by Stripe Payments Canada Ltd. (in Canada) and Stripe Payments (in the United States) or such other payment services providers as Foodee may choose from time to time (collectively referred to as the “Payment Processing Services Provider”). Payment Processing Services Providers are independent persons or organizations and not subcontractors, agents, or employees of Foodee. You hereby authorize Foodee to share with the Payment Processing Services Provider that financial information, banking details and transaction information related to your use of the payment processing services and the Foodee Services. You also agree that Foodee is not responsible for the use or misuse of such financial information, banking details and transaction information by the Payment Processing Services Provider or any third party.
You represent and warrant to, and covenant with, Foodee that the Customer Data will only contain Personal Information in respect of which you have provided all notices and disclosures (including to each Authorized User), obtained all applicable third party consents and permissions, and otherwise have all authority, in each case as required by applicable laws, to enable Foodee to provide the Foodee Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Foodee and to or from all applicable third parties.
DISCLAIMER AND EXCLUSION OF LIABILITY
USE OF THE FOODEE PLATFORM, FOODEE SERVICES, OR THE CONTENT IS AT YOUR OWN RISK. THE FOODEE PLATFORM, FOODEE SERVICES, AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY LAW, FOODEE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE FOODEE PLATFORM, FOODEE SERVICES, AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE FOODEE PLATFORM, FOODEE SERVICES, OR THE CONTENT, OR THAT THE FOODEE PLATFORM, FOODEE SERVICES, OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. FOODEE EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE FOODEE PLATFORM AND THE CONTENT.
RESTAURANTS MARKETING THEIR PRODUCTS AND SERVICES THROUGH THE FOODEE PLATFORM ARE INDEPENDENT PERSONS OR ORGANIZATIONS AND NOT SUBCONTRACTORS, AGENTS OR EMPLOYEES OF FOODEE. FOODEE IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONTRACTUAL BREACHES OR NEGLIGENCE OF ANY RESTAURANTS OR FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER FOR THE SERVICES AND THE PRODUCTS, INCLUDING MEALS, OFFERED BY THE RESTAURANTS.
Limitation of Liability
SUBJECT TO SECTION 24(C), IN NO EVENT WILL EITHER PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE FOODEE PLATFORM, THE FOODEE SERVICES, OR THE CONTENT.
SUBJECT TO SECTION 24(C), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUCCESSORS OR ASSIGNS IN CONNECTION WITH OR UNDER THIS AGREEMENT, INCLUDING IN CONNECTION WITH CUSTOMER’S USE OF, OR INABILITY TO MAKE USE OF, THE FOODEE PLATFORM, THE FOODEE SERVICES, OR THE CONTENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE FOODEE PLATFORM, THE FOODEE SERVICES, OR THE CONTENT EXCEED CDN $100.00 (ONE HUNDRED CANADIAN DOLLARS). FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
THE LIMITATIONS SET FORTH IN SECTIONS 24(A) AND (B) WILL NOT APPLY TO LIMIT ANY LIABILITIES, DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO: (I) A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR INTENTIONALLY WRONGFUL ACTS; (II) CUSTOMER’S UNAUTHORIZED USE OF THE FOODEE SERVICES, INCLUDING USE IN CONTRAVENTION OF SECTION 3 (USE OF THE FOODEE PLATFORM) OR SECTION 17 (NO UNLAWFUL OR PROHIBITED USE); OR (III) CUSTOMER’S OBLIGATIONS UNDER SECTION 9 (FEES AND PAYMENT) OR SECTION 25 (CUSTOMER INDEMNITY).
THE LIMITATION ABOVE REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Customer will defend, indemnify and hold harmless Foodee and its officers, directors, employees, and agents (each, a “Foodee Indemnitee”) from and against any and all losses incurred by a Foodee Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party that arises from or relates to: (a) your violation of any law or the rights of a third party; or (b) your use of the Foodee Platform in violation of this Agreement.
Geographic Application of the Foodee Services
Not all of the Foodee Services are available in all jurisdictions. Furthermore, nothing on the Foodee Platform constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by law.
Foodee will not be liable to you for any failure of or delay in the performance of its obligations under this Agreement for the period that such failure or delay is due to causes beyond Foodee’s reasonable control, including acts of God, war, strikes or labour disputes, embargoes, government orders or any other force majeure event.
Governing Law and Jurisdiction
This Agreement will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. These laws apply to your access to or use of the Foodee Platform, the Foodee Services, or the Content, notwithstanding your domicile, residency or physical location. The Foodee Platform, the Foodee Services, and the Content are intended for use only in jurisdictions where they may lawfully be offered for use.
Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Vancouver, British Columbia, Canada in all disputes arising out of or relating to the use of the Foodee Platform, the Foodee Services, or the Content. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights in any appropriate jurisdiction.
Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, Foodee may, upon notice to Customer, assign this Agreement and its rights, benefits, warranties and obligations hereunder, in whole or in part, at any time to a third party in connection with a merger, acquisition, or transfer of all or substantially all of Foodee’s assets or voting securities or to an affiliate without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
In the event of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the following descending order of priority will apply to the extent of such conflict or inconsistency: (i) the terms and conditions of the main body of this Agreement; and (ii) the applicable Order Form (except to the extent such Order Form expressly states that it is intended to amend this Agreement and identifies the specific provisions to be amended).
Foodee may, in its sole discretion, provide any notices to you in connection with this Agreement through the Foodee Platform or by email at the then-current email address for you on file with Foodee. You may provide notices to Foodee by writing to the following address: 333 Seymour St, Vancouver, BC V6B 5A7 or by email at firstname.lastname@example.org. Foodee may change its notice contact information from time to time by posting updated contact details on the Website.
Foodee’s failure to insist upon or enforce strict performance of any provision of this Agreement will not be construed as a waiver of any provisions or right.
If any of the provisions contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision will be severed from this Agreement and the remaining provisions will continue in full force and effect.
If any of the provisions contained in this Agreement conflict with the terms of any other agreement between the Parties, then this Agreement will prevail.
No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, FOODEE MAY UNILATERALLY AMEND THIS AGREEMENT (EXCLUDING ANY ORDER FORMS), IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY FOODEE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
Foodee’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.