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Terms of Service


Terms of Service - USER ACCOUNT

Last Updated: October 1, 2020

Country: United States

These Terms provide that with limited exceptions covered by Section 17.3 of these Terms all disputes between you and Favemenu arising out of or relating to these Terms or your use of the PLATFORM (the “Disputes”) will be resolved by BINDING ARBITRATION. For such Disputes, YOU WAIVE YOUR RIGHT TO bring a class or representative action, or GO TO COURT under these Terms. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims must be brought individually and not as a class or representative action. Please review Section 17 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to individually arbitrate any Disputes with Favemenu.

Thank you for your interest in the Favemenu application for your mobile device (the "App") provided to you by Favemenu Inc. ("Favemenu", "us" or "we"), and our web site at Favemenu.co (the "Site"), as well as all related web sites, networks, and downloadable software provided by us and on which a link to these Terms of Service is displayed (collectively, together with the App and Site, our "Platform"). These Terms of Service (these "Terms"), including the Privacy Policy incorporated into these Terms by reference and any other applicable policies and guidelines, as may be updated from time to time, govern your use of the Platform. These Terms constitute a legal agreement between you and Favemenu. In order to use the Platform you must agree to these Terms.

All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity to these Terms, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT USE THE PLATFORM.

FAVEMENU PLATFORM

The Platform connects consumers with retail stores, and restaurants (“Merchants”), and with independent contractor couriers (“Couriers”), to facilitate on-demand delivery or pickup services. Through the Platform, consumers may request that merchandise or food be made available for pick-up or delivered to them from a Merchant by Couriers who contract with Favemenu to access the Platform and receive delivery opportunities.

Favemenu is not a retail store, restaurant, food delivery platform, merchandise delivery platform or food preparation entity. Favemenu is not liable or responsible for Merchants’ compliance with applicable federal, state, or local laws, rules, regulations or standards pertaining to their businesses. In addition, Favemenu does not guarantee the quality of what Merchants sell and does not independently verify, and is not liable for, representations made by Merchants regarding their products on the Platform.

Favemenu is not the retailer of any products offered by Merchants, nor is it in the delivery business or a common carrier. Favemenu provides a technology platform facilitating the transmission of orders by consumers to Merchants for pickup or delivery by Couriers. Couriers are independent contractors and not employees, partners, agents, joint ventures, or franchisees of Favemenu. Couriers have entered into independent contractor agreements with Favemenu, which require them to comply with all applicable federal, state, and local laws, rules and regulations. Favemenu shall not be liable or responsible for any delivery services provided by Couriers, or any errors or misrepresentations made by any of them. You hereby acknowledge that Favemenu does not supervise, direct, control, or monitor a Courier’s provision of services and expressly disclaims any responsibility or liability for the services performed.

Favemenu is committed to ensuring that the merchandise or food ordered by a consumer is delivered in a manner consistent with consumer’s expectation.

As provided in greater detail in these Terms, you agree and acknowledge these material terms:

  • The Platform is licensed, not sold to you, and you may use the Platform only as set forth in these Terms;
  • Your use of the Platform may be subject to separate third party terms of service and fees, including without limitation your mobile network operator’s ("Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
  • You consent to the collection, sharing, and use of your personally identifiable information in accordance with Favemenu’s Privacy Policy;
  • The Platform is provided "as is" without warranties of any kind, and Favemenu’s liability to you is limited; and
  • Disputes arising under these Terms will be resolved by binding individual arbitration.

1. Eligibility

You must be at least eighteen (18) years old to use the Platform. By agreeing to these Terms, you represent and warrant to us: (1) That you are at least eighteen (18) years old; (2) That you have not previously been suspended, banned, or removed from the Platform; and (3) That your registration and your use of the Platform is in compliance with any and all applicable laws and regulations.

2. Accounts and Registration

To access some features of the Platform, 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, credit card information, e-mail address, phone number, profile image, or other contact information). You agree that the information you provide to us is accurate, current, and complete, and that you will keep it up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and any password for Facebook, Google, or other third-party login. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, you must immediately notify us via our Help Center. Favemenu will not be liable and you may be liable for losses, damages, liability, expenses, and lawyers’ fees incurred by Favemenu or a third party arising from someone else using your account due to your conduct regardless of whether you have notified us of such unauthorized use. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account.

3. Scope of License

The Platform is licensed, not sold, to you for use only under the terms of this license. Favemenu reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with these Terms, Favemenu hereby grants you a personal, limited, non-sublicensable, non-transferable, and revocable license to access the Platform on compatible devices that you own or control, solely for your own personal, non-commercial use, and only in a manner that complies with all legal requirements that apply to you or your use of the Platform. Favemenu may revoke this license at any time, in its sole discretion.

You may not modify, alter, reproduce, distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. If you breach these license restrictions, or otherwise exceed the scope of the license granted in these Terms, you may be subject to prosecution and legal damages, as well as liability for infringement of intellectual property rights. These Terms will govern any updates provided to you by Favemenu that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license in which case the terms of that license will govern.

4. Payment Terms

4.1. General Payment Terms

Platform

You understand that the prices for product or menu items displayed through the Platform may differ from the prices offered or published by Merchants for the same product or menu items and/or from prices available at other third-party websites/mobile applications. Prices for product or menu items displayed through the Platform may not be the lowest prices at which the product or menu items are sold.

Because of the nature of the Platform, Favemenu does not always know how much a Merchant will charge for a particular product or menu item. Where your cart includes product or menu items for which Favemenu does not know the exact price to be charged by the Merchant, Favemenu may designate an estimated subtotal for such product and menu items (the “Estimated Subtotal”). Similarly, where Favemenu does not know the exact price of certain or all fees associated with the order, including any applicable taxes and/or Favemenu fees, we may designate an estimate for such fees (the “Estimated Fees”). If you have included product or menu items in your cart that are subject to Estimated Subtotal and/or Estimated Fees, we will provide you with an estimated total. Merchants may charge more or less than the Estimated Subtotal for products or menu items you order. Similarly, we may charge more or less than the Estimated Fees based upon the final prevailing price of Merchant’s goods. In some cases, we may not be able to provide Estimated Subtotal or Estimated Fees, such as when the merchandise cost is unknown or we are otherwise unable to predict fees. Favemenu reserves the right to determine final prevailing pricing of all product or menu items ordered through the Platform. In cases in which prevailing pricing is different than the Estimated Subtotal and/or Estimated Fees, what you are ultimately charged may be different than the estimated total. You acknowledge and agree to pay the prevailing pricing and fees, even if they differ from the Estimated Subtotal and/or Estimated Fees. Please visit our Help Center to learn more about how product or menu items are priced.

Certain features of the Platform, including placing orders, may require you to pay fees to Favemenu. Favemenu may change, or add, fees for use of our Platform at any time as we deem necessary or appropriate for our business, and we may incorporate certain fees into the price of products or menu items. You will have an opportunity to review and accept an estimate of the fees and other pricing that you will be charged, as applicable. The final fees may differ from the estimate. In all cases, you acknowledge and accept that a fee will be charged and you agree to pay said fee. We encourage you to check our Site or visit our Help Center periodically to learn more about how we charge for the Platform.

Favemenu has no obligation to itemize its costs, Estimated Fees, profits or margins when publishing prices on the Platform and reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Platform provided under these Terms (other than taxes based on Favemenu’ income).

Favemenu will charge the payment method you specify at the time of purchase or as otherwise specified by you in your account information. We may also place a pre-authorization hold on your payment method, as described in Section 4.3.

Charges paid by you are final and non-refundable, except as expressly provided in Section 4.2, and will be quoted in the local currency of the location where the order is being delivered or picked up. Except as expressly provided in Section 4.2, Favemenu has no obligation to provide refunds or credits. However, Favemenu, in its sole discretion, may provide consumers with refunds, courtesy delivery or product credits, or make promotional offers with different features and different rates to any consumers, which are subject to these Terms (see Credits section below).

Referral Program

Favemenu, in its sole discretion, may offer a referral program (“Referral Program”), allowing consumers to earn courtesy delivery or product credits, or other promotional rewards (“Referral Program Rewards”) by inviting their eligible friends to register as new Favemenu consumers using a unique referral code (“Referral Program Codes”). Referral Program Codes must be used for the intended audience and purposes, and may not be sold or transferred in any manner or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Favemenu. Referral Program Rewards may vary by consumer, location, and/or availability. Favemenu may require Referred consumers to spend a minimum amount on the Favemenu Platform before granting Referral Program Rewards. Referral Program Rewards can only be redeemed for Favemenu orders on Favemenu.co or Favemenu app with the latest version, and within areas and times that Favemenu Platform is available. Referral Program Rewards are non-transferrable, may not be resold, and are not redeemable for cash, cash equivalent or other consideration. Referred consumers will be disqualified and will not receive Referral Program Rewards if Favemenu has a record of their name, email, phone number, devise, or credit card having been used for a prior Favemenu order or being linked to an existing active or inactive Favemenu account. You agree we may change the terms and conditions of the Referral Program, terminate the Referral Program, or expire, deduct, limit, or modify your Referral Program Rewards at any time for any reason, including but not limited to, the event that Favemenu determines or believes that your participation in the Referral Program or use or redemption of Referral Program Codes was in error, fraudulent, illegal, or otherwise in violation of these Terms. You can learn more about Favemenu’s Referral Program here.

Promotional Offers and Credits.

Promotional Offers. Favemenu, in its sole discretion, may make promotional offers with different features and different rates to any consumer. These promotional offers are subject to these Terms and may be valid only for certain consumers as indicated in the offer. A consumer must have a valid Favemenu account with a valid form of accepted payment on file to take advantage of a promotional offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Favemenu; (iii) are subject to the specific terms that Favemenu establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; (v) may only be applied if all qualifying conditions are met; and (vi) are not valid for use after the date indicated in the offer.

Promotional offers can only be redeemed for Favemenu orders on Favemenu.co or Favemenu app with the latest version, and within areas and times that Favemenu Platform is available. Promotional offers are non-transferrable, may not be resold, and are not redeemable for cash, cash equivalent or other consideration. For promotional offers available only to new consumers or new Unlimited subscribers, as applicable, consumers will be disqualified and will not be entitled to receive the offer if Favemenu has a record of their name, email, phone number, devise, or credit card having been used for a prior Favemenu order or being linked to an existing active or inactive Favemenu account. Offers cannot be applied retroactively for prior purchases and cannot be combined unless otherwise indicated. You agree we may change the terms and conditions of an offer, terminate an offer, or expire, withhold, deduct, limit, or modify an offer at any time for any reason. Favemenu reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Favemenu determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or these Terms. Favemenu reserves the right to modify or cancel an offer at any time. The offer-redeeming consumer is responsible for paying any applicable sales tax related to the use of an offer. Favemenu has no obligation for payment of any tax in conjunction with the distribution or use of any Offer.

Credits. Favemenu may, from time to time, issue gratuitous credits in its sole discretion. Favemenu credits will be automatically applied to your next order, can only be redeemed for Favemenu orders on Favemenu.co or on the Favemenu app with the latest version, and within areas and times that Favemenu Platform is available. Credits may be applied toward order subtotals (excluding gratuity) or delivery fee only as indicated in your consumer account. The expiration date(s) for such credits can be found in the Favemenu app and/or the credit-issuing email. Credits may not be applied with any other offer. Credits are non-transferrable, may not be resold, and are not redeemable for cash, cash equivalent or other consideration. Upon expiration, credits will be removed from your account. Expired credits are no longer redeemable and cannot be used towards any order.

If your account is cancelled for any or no reason, you may forfeit any pending, current, or future credits or promotional offers and any other forms of unredeemed value in or associated with your account without prior notice to you.

4.2. Unlimited Subscription

Favemenu Unlimited (“Unlimited”) is offered as a monthly or yearly pre-paid subscription to the Platform on a per account basis. By signing up for Unlimited and providing us with your payment account information, you are signing up to an auto-renewing subscription requiring recurring payments and agree to pay the then-current applicable fee associated with the subscription.

If you sign up for the monthly subscription, you will be charged your first monthly subscription fee and any applicable taxes on the date you purchase your subscription or, if your subscription includes a free trial, on the day after your free trial ends. Your subscription will automatically continue on a monthly basis, and you will continue to be charged on a monthly basis at the then-current price (including any applicable taxes), until you cancel your subscription or we terminate it. If you sign up for the yearly subscription, you will be charged your first upfront, non-refundable (except as described below) yearly subscription fee and any applicable taxes on the date you purchase your subscription or, if your subscription includes a free trial, on the day after your free trial ends. Your subscription will automatically continue on a yearly basis at the then-current price (including any applicable taxes), and you will continue to be charged on a yearly basis, until you cancel your subscription or we terminate it. You can find your monthly and/or yearly subscription renewal/billing date in your account settings.

In some cases your payment date may change, for example if your payment method has not successfully settled or if your paid membership began on a day not contained in a given month. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the service until we have successfully charged a valid payment method.

If your subscription includes a free trial, you will not be charged the applicable subscription fee during your free trial. To obtain the free trial you will be required to provide a credit card in order to ensure uninterrupted access to Unlimited and continued use after the expiration of the free trial. Upon completion of your free trial, your subscription will automatically convert into a paid Unlimited subscription and your payment method will be charged the applicable fee unless you have cancelled your Unlimited subscription. If your subscription includes an initial discount, you will be charged the then-current monthly or yearly subscription fee once the discount period is over. You may cancel your Unlimited subscription as described below. You may not receive a notice from us that your free trial or discount period has ended or that the paying portion of your Unlimited subscription has begun. You are only permitted one free trial. If your Unlimited subscription is ever terminated for any reason, and you purchase an additional Unlimited subscription, you shall not be eligible for a free trial on any subsequent Unlimited subscriptions.

We may change the subscription terms or fees at any time on a going forward basis in our discretion. If the pricing for your subscription increases, we will notify you, and provide you an opportunity to change your subscription before applying those changes to your account or charging your payment details in connection with an automatic renewal. The notification will inform you of how long you have to change your subscription before the changes become effective. Your continued use of Unlimited after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may cancel your subscription. If you accept the new subscription, its terms and conditions will apply for that renewal and all renewals going forward. For information on the monthly and yearly subscription fees and terms, please visit our Help Center.

You may cancel your subscription at any time in your account settings or by contacting us via our Help Center. You must cancel your subscription before it renews to avoid billing of the next periodic subscription fees to your account. However, if you cancel a pre-paid yearly or monthly subscription, you will not receive any refund. If you cancel your monthly or yearly subscription, you will be able to use your Unlimited subscription for the remainder of your pre-paid subscription term.

We may terminate your subscription for Unlimited at our discretion and without any notice. If we cancel your yearly subscription for Unlimited, we will give you a prorated refund based on the amount of time remaining in your pre-paid subscription; provided, however, that Favemenu will not be obligated to grant you a refund if we terminate your account or your subscription because we determine, in our sole discretion, that your actions or your use of the Platform violates these Terms or has harmed another user.

4.3. Payment Authorization

You authorize Favemenu to charge all sums for orders that you make to the payment method designated in your account. If there is a problem charging your selected payment method, we may charge any other valid payment method associated with your account. When you place an order through Favemenu, a temporary pre-authorization hold is placed on your designated payment method to verify that the card is valid and has funds available for your intended purchase. The amount of this pre-authorization hold may be greater or less than the order total quoted at checkout. However, your payment will be captured up to 24 hours after your order is completed or cancelled. In the event that the pre-authorization is greater than the final amount, the difference will be released after your order is completed or cancelled; depending on your bank, it may take up to 5 business days to receive access to these released funds. In the event that the pre-authorization is lower than the final amount, we will either authorize an increase in the original amount or, if unsuccessful, we will capture the increase in amount owed by you in a second authorization.

Favemenu also places an initial temporary pre-authorization hold on each new payment method you add to your account.

Favemenu reserves the right to request additional information from you if we have reason to believe, in our sole discretion, that a payment method may be fraudulent.

4.4. Delinquent Accounts

If payment due on your account is delinquent, we reserve the right to suspend or terminate your access to the Platform; your account information may be sent to a collection agency/debt collector and you may be subject to a collection action, and payment of collection related fees and costs. If any fee for your Unlimited subscription is not paid in a timely manner, we reserve the right to revoke access to your Unlimited subscription and use of Favemenu. If you do not bring your Favemenu balance current after we provide you with notification that your account is in arrears, we reserve the right to suspend or terminate your access to your Unlimited subscription or convert your Unlimited subscription to a non-subscription account. You will be responsible for paying all past due amounts. If you have questions regarding an outstanding balance on your account, please contact us via our Help Center.

If your payment card expires or is replaced by your issuing bank, the card network may provide us with updated card details associated with the same account. We may use these new details in order to help prevent any interruption to the Platform. If you would like to use a different payment method, please visit your account settings to update your billing information. In addition, we may charge another stored payment card if your default payment is declined or no longer available to us.

4.5. Consumer Not Available

Favemenu reserves the right to charge you the full order amount, including any Favemenu fees, if you are not at the designated delivery location when the Courier arrives to complete the delivery or if you fail to pick up an order from a Merchant.

4.6. Cancelled Orders

If you cancel your order, you may be charged depending on what stage the order was in when you cancelled. You will be notified of any applicable charges before you complete your cancellation. You can learn more about order cancellations in our Help Center.

4.7. Returned Items

If an item has to be returned for any reason, you may be subject to a non-refundable $15 return/restocking fee. For alcohol items, the Courier reserves the right, at his or her discretion, to refuse delivery and return the item(s) if the name on your ID does not match the name on your order, if you are not at least twenty-one (21) years old ("Legal Age"), if you cannot provide a bona-fide government-issued photo identification that shows you are of Legal Age, or if you are visibly intoxicated.

4.8. Gift Cards

Favemenu may provide you with the option to purchase or redeem gift cards in connection with your use of the Platform. You agree that you will comply with all gift card terms and conditions, which are incorporated by reference and are located in our Help Center. You can learn more about gift cards in our Help Center.

5. Third-Party Interactions

5.1. Third-Party Providers

During use of the Platform, you may purchase goods and services from third-party Merchants through the Platform. Any such activity, and any interactions, disputes, terms, conditions, warranties or representations associated with that activity, is solely between you and the applicable third-party Merchant. Favemenu and its licensors shall have no liability, obligation or responsibility for any purchase or transaction between you and any third-party provider. In no event shall Favemenu or its licensors be responsible for any content, products, services or other materials on or available from third-party sites or third-party providers. Certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and Favemenu disclaims any and all responsibility or liability arising from such agreements between you and a third party.

5.2. Couriers

The Platform enables you to engage third-party Couriers to provide delivery services. Any interactions or disputes between you and a Courier are solely between you and that Courier. Favemenu and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier.

5.3. Third-Party Advertising

The Platform may contain third-party advertising and marketing. By agreeing to these Terms you agree to receive such advertising and marketing.

5.4. Third-Party Terms

Parts of the Platform may include Google Maps features and content, including the Google Maps API(s). Your use of Google Maps is subject to the Google Maps/Google Earth Additional Terms of Service and the Google Privacy Policy.

6. Your Use of the Platform

In order to use the Platform, you agree to the following:

  • The Platform, including any content that forms part of the Platform, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including copyright;
  • You will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;
  • Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Platform, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Platform without prior written authorization;
  • You agree not to bypass any security or other features of the Platform designed to control the manner in which the Platform is used, harvest or mine content from the Platform, or otherwise access or use the Platform in a manner inconsistent with individual human use;
  • You agree not to perform any fraudulent activity, including impersonating any person or entity, or accessing any other Platform account without permission;
  • You agree not to decipher, reverse engineer, decompile or disassemble the Platform, or the software used to provide the Platform, in whole or in part, or authorize, direct, or cause a third party to do so;
  • You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Platform, or any portion thereof, unless and solely to the extent Favemenu makes available the means for embedding any part of the Platform;
  • You agree not to access, tamper with, or use non-public areas of the Platform, Favemenu’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Favemenu’s providers;
  • You agree not to use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;
  • You agree not to use the Platform in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Favemenu is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Platform;
  • You agree that your use of the Platform may incur third-party fees, such as fees charged by your Carrier for data usage, and may be subject to third-party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms; and
  • You agree not to introduce viruses, time-bombs, worms, cancelbots, trojan horses and/or other harmful code into the Platform.

Transactions involving Alcohol. Alcoholic beverages (including but not limited to beer, wine, cider, and spirits, as applicable; all referred to as "Alcoholic Beverages") may only be purchased by consumers who are of Legal Age in jurisdictions that permit such purchase. If you are a consumer, you expressly represent and warrant that: (i) you are of Legal Age; and (ii) you will provide bona fide government-issued photo identification to your Courier upon delivery to you. Valid forms of identification include but are not limited to: (i) a valid motor vehicle operator’s license, (ii) a passport issued by the U.S. or by a foreign government, or (iii) a valid identification card issued to a member of the Armed Forces that includes a date of birth and a picture, showing your Legal Age. Deliveries of Alcoholic Beverages may not be made to anyone who is intoxicated, regardless of his or her age. You further understand and acknowledge that neither Favemenu nor the Courier can accept your order of Alcoholic Beverages, and the order will only be delivered if the third-party Merchant accepts your order.

You agree not to do any of the acts described in this Section 6, or to assist or permit any person in engaging in any of the acts described in this Section 6.

7. Consent to Use of Data

Please see Favemenu’ Privacy Policy, for more information regarding information Favemenu collects, and how it uses and shares that information.

If you have previously instructed Favemenu to share your personal information with a Merchant or any other third party, you can elect to discontinue such sharing by submitting a request through our Help Center. Separately, to unsubscribe from emails from a particular Merchant, please click the unsubscribe link in any email sent from the Merchant.

8. Intellectual Property Ownership

The Platform, and the media and materials contained in the Platform, including all intellectual property rights in the Platform, are the sole and exclusive property of Favemenu and its licensors. Except for the limited license expressly granted by and to you under these Terms, no other rights, licenses, or immunities are granted or shall be deemed to be granted under these Terms, either expressly, or by implication, estoppel or otherwise. All rights not expressly granted by Favemenu in these Terms are expressly reserved.

9. Content You Provide through the Platform

9.1. Content You Provide

You may be able to submit, post, upload, denote, or otherwise make available (collectively, “Post”) photographs, video clips, reviews, ratings, favorites, liked items, bookmarked Merchants, questions, comments, public messages, ideas, designs, concepts, inventions, feedback, and other content (collectively, “User Content”) (that may or may not be viewable by other users) through the Platform or through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (“Interactive Areas”).

9.2. Use of Your Content

You acknowledge that when you Post User Content on or through the Platform, the User Content shall be deemed, and shall remain Favemenu’s property. Favemenu does not provide any compensation for User Content that you Post on or through the Platform. You agree that User Content that you Post on or through the Platform shall be deemed to be non-confidential and non-proprietary, and Favemenu shall have no obligation of any kind with respect to such information. When you Post User Content on or through the Platform, you grant Favemenu a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licensable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, sell, lease, transmit, communicate to the public, disassemble, and publish such User Content in connection with Favemenu’s or its partners’ or affiliates’ business, in whole or in part, in any format or medium now known or developed in the future, for any purpose whatsoever, unless expressly agreed otherwise in writing by Favemenu, including without limitation for promoting and redistributing part or all of the Platform (and derivative works thereof) in any media formats and through any media channels. You further grant Favemenu a license to use your username and/or other user profile information, including, without limitation, your ratings history and how long you have been a Favemenu consumer, to attribute User Content to you, if we choose to do so. Further, Favemenu shall be free to use any ideas, concepts, know-how or techniques contained in User Content for any purpose whatsoever in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you, including but not limited to developing, manufacturing and marketing products incorporating such information. In the interest of clarity, the license granted to Favemenu shall survive termination of the Platform or your account. Notwithstanding the foregoing, our use of your personal data shall be governed by the Favemenu Privacy Policy.

9.3. User Content Representations

You acknowledge and agree that all User Content that you Post is your sole responsibility. You represent that you have all required rights to Post or transmit such User Content without violation of any third-party rights. You understand that Favemenu does not control, and is not responsible for, User Content, and that by using the Platform, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Favemenu for all claims resulting from User Content you Post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.

9.4. User Content Review

You acknowledge and agree that Favemenu and its designees may or may not (but do not assume any obligation to), at Favemenu’s discretion, pre-screen User Content before its appearance on the Platform. You further acknowledge and agree that Favemenu reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Platform. Additionally, Favemenu has the right to remove any User Content that violates these Terms or is otherwise objectionable in Favemenu’s sole discretion. You acknowledge and agree that Favemenu does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.

9.5. Ratings and Reviews

The Platform and other Interactive Areas may allow you to rate (“Ratings”) and Post reviews (“Reviews”) of Merchants. Such Ratings and Reviews are considered User Content and are governed by these Terms, including, without limitation, your agreement regarding your use of the Platform (Section 6). Ratings and Reviews are not endorsed by Favemenu, and do not represent the views of Favemenu or of any affiliate or partner of Favemenu. Favemenu does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) you must have had first-hand experience with the Merchant within the 7-day period prior to your Posting a Rating or Review; (2) you may not have a proprietary or other affiliation with either the Merchant or any of its competitors; (3) you may not draw any legal conclusions regarding the Merchant’s products, services, or conduct; (4) you may not promote or criticize a Merchant other than the one being rated or reviewed; (4) you may not include others’ personal information; and (5) your Rating or Review must otherwise comply with these Terms. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, and/or the Platform may be removed or excluded by us without notice.

10. Communications

10.1. Text Messaging

By using the Platform, you understand and agree that Favemenu and those acting on its behalf may send you text (SMS) messages (potentially including messages generated using an automatic telephone dialing system) at the phone number you provided us. These messages may include operational messages about your use of the Platform, as well as marketing or other promotional messages. You will not be able to use the Platform without agreeing to receive operational text messages. You may opt-out of receiving marketing or other promotional text messages at any time by sending an email to love@favemenu.co indicating that you no longer wish to receive marketing or other promotional texts along with the phone number of the mobile device receiving the messages, or by following any unsubscribe instructions in the text messages. You may continue to receive text messages for a short period while Favemenu processes your request, and you may also receive text messages confirming the receipt of your opt-out request. If you do not want to receive operational text messages from Favemenu, do not place orders through the Platform.. Your agreement to receive marketing texts is not a condition of any purchase or use of the Platform. If you change or deactivate the phone number you provided to Favemenu, you must update your account information to help prevent us from inadvertently communicating with anyone who acquires your old number. Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your Carrier for details.

10.2. Push Notifications

When you install our App on your mobile device you agree to receive push notifications, which are messages an app sends you on your mobile device even when the app is not on. You can turn off notifications by visiting your mobile device's "settings" page.

10.3. Email

Favemenu may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.

10.4. E-SIGN Disclosure

By agreeing to receive text messages, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by contacting us via the Help Center with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, please contact us via the Help Center with contact information and the address for delivery.

10.5. Notice of Intellectual Property Infringement

In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is the policy of Favemenu, in appropriate circumstances, to terminate the registration account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Platform, please provide substantially the following information to our Copyright Agent (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):

  • 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 your copyrighted work or other intellectual property that you claim has been infringed;
  • A description of where the material you claim is infringing is located on the Services (providing us with website URL is the quickest way to help us locate content quickly);
  • 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 owner, its agent, or the law; and
  • 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.

Favemenu’s copyright agent can be reached as follows:

Lodestone Legal Group
256 Seaboard Lane, Suite G-103

Franklin, TN 37067

love@favemenu.co

Please note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT OUR COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS. For other inquiries or questions, please contact us via our Help Center. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

11. Indemnity

You are responsible for your use of the Platform, and you agree to defend (at Favemenu’s option), indemnify, and hold harmless Favemenu and its officers, directors, employees, contractors, consultants, affiliates, investors, service providers, business partners, subsidiaries and agents from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:

  • Your violation of any of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation;
  • Your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or
  • Any dispute or issue between you and any third party, including any Courier, Merchant, or other third-party.

Favemenu reserves 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) and you agree to cooperate with our defense of that claim. If the defense or settlement is assumed by you, Favemenu may at any time thereafter elect to take over control of the defense and settlement of the claim. You must not settle any claim that you are defending on behalf of Favemenu without Favemenu’ prior written consent.

This provision does not require you to indemnify Favemenu for any unconscionable commercial practice by such party, or for such party’s gross negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Software or Services.

You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.

12. Disclaimer of Warranties

YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY FAVEMENU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FAVEMENU MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PLATFORM. FAVEMENU DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; THAT THE PLATFORM OR ANY PRODUCTS OR MATERIALS OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

FAVEMENU’S PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FAVEMENU IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

FAVEMENU RELIES UPON MERCHANTS, INCLUDING, BUT NOT LIMITED TO, RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS AND RETAILERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. FAVEMENU DOES NOT REPRESENT OR WARRANT THAT SUCH INFORMATION ACCESSIBLE THROUGH THE PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, INCLUDING WITHOUT LIMITATION MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE PLATFORM IS SOLELY AT YOUR OWN RISK, INCLUDING WITHOUT LIMITATION NUTRITIONAL AND ALLERGEN INFORMATION.

FAVEMENU DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR PLATFORM ADVERTISED OR OFFERED BY A MERCHANT OR OTHER THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR THIRD-PARTY SERVICE, AND FAVEMENU WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

13. Limitation of Liability

IN NO EVENT SHALL FAVEMENU’ AGGREGATE LIABILITY EXCEED THE FAVEMENU FEES ACTUALLY PAID BY YOU TO FAVEMENU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1000, WHICHEVER IS LESS. IN NO EVENT SHALL FAVEMENU AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE) EVEN IF FAVEMENU AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THIS LIMITATION OF LIABILITY SECTION APPLIES FULLY IN ALL STATES, INCLUDING RESIDENTS OF NEW JERSEY.

THE PLATFORM CONNECTS YOU TO COURIERS AND MERCHANTS FOR THE PURPOSES OF FACILITATING COURIER AND PRODUCT FULFILLMENT SERVICES. FAVEMENU WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY COURIERS OR MERCHANTS, AND YOU EXPRESSLY WAIVE AND RELEASE FAVEMENU FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE COURIERS OR MERCHANTS. FAVEMENU WILL NOT ASSESS THE QUALITY, SAFETY, OR LEGALITY OF THE ITEMS PROVIDED BY MERCHANTS ON THE PLATFORM, AND YOU EXPRESSLY WAIVE AND RELEASE FAVEMENU FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO MERCHANTS, AND THE ITEMS THEY PROVIDE. FAVEMENU WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN YOU AND ANY COURIERS, OR MERCHANTS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE PLATFORM (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU. IN ADDITION, WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTIES, AND YOU EXPRESSLY WAIVE AND RELEASE FAVEMENU FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE PLATFORM, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE PLATFORM. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

THE QUALITY OF THE COURIER PROVIDING SERVICES THROUGH THE USE OF THE PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY COURIER WHO ULTIMATELY PROVIDES DELIVERY SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE PLATFORM, YOUR ITEMS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE PLATFORM AT YOUR OWN RISK.

14. Notice

Favemenu may give notice by any means of communication reasonably anticipated to notify you of the information provided. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. By way of example only, such communication may be a general notice on the Platform or via email to the email address listed on your Favemenu account. It is your obligation to update your account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch. If physical notice (e.g., US Mail) is used, then such notice shall be deemed to have been given 7 days after dispatch.

Except as explicitly described in the Dispute Resolution and Arbitration section, you may give notice to Favemenu (such notice shall be deemed given when received by Favemenu) at any time by any of the following: email at love@favemenu.co.

15. Assignment

You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be void.

16. Term and Termination of Agreement

These Terms are effective until terminated by you or Favemenu as described below. Your rights under these Terms will terminate automatically without notice from Favemenu if you fail to comply with any of these Terms (including by violating any license restriction contained in these Terms). In addition, Favemenu may in its sole discretion terminate your user account on the Platform or suspend or terminate your access to the Platform at any time without notice. We also reserve the right to modify or discontinue the Platform at any time (including by limiting or discontinuing certain features of the Platform) without notice to you. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate these Terms at any time by closing your account, uninstalling the App, and ceasing use of the Platform. Sections 4.4, 5, 7-17, and 19-21 survive termination of your account or these Terms.

17. Dispute Resolution and Arbitration

17.1. Disputes

Favemenu is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user, any Courier, or Merchant, or other third party. Disputes between you and Favemenu are subject to this Section 17. You and Favemenu agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of the arbitration provisions in these Terms.

17.2. Generally

In the interest of resolving Disputes between you and Favemenu in the most expedient and cost effective manner, you and Favemenu agree that every Dispute arising in connection with these Terms will be resolved by binding individual arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and can be subject to very limited review by courts. While the parties will be permitted to engage in discovery or exchange of non-privileged information relevant to the dispute, arbitration may allow for more limited discovery allowed for in court. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Platform, or your relationship with us, 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 FAVEMENU ARE EACH WAIVING THE RIGHT TO GO TO COURT OR TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION.

17.3. Exceptions

Despite the provisions of the paragraph directly above, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (1) Bring an individual action in small claims court; (2) Pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (3) File suit in a court of law to address an intellectual property infringement claim.

17.4. Arbitrator

Any arbitration between you and Favemenu shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms, and administered by JAMS. The JAMS Rules and fee information are available at www.jamsadr.org or by calling JAMS at 1-800-352-5267. The arbitrator is bound by these arbitration terms. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrabilty of this Section 17.

17.5. Notice Process

A party who intends to seek arbitration must first send a written notice of the Dispute to the other by electronic mail ("Notice").

Favemenu’s address for Notice is love@favemenu.co

The Notice must: (1) Describe the nature and basis of the claim or dispute; and (2) Set forth the specific relief sought ("Demand").

We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within thirty (30) days after the Notice is received, you or Favemenu may commence an arbitration proceeding. To start an arbitration, you must do the following: (1) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (2) Send three copies of the Demand for Arbitration, plus the $250 filing fee to love@favemenu.co; and (3) Send one copy to love@favemenu.co

During the arbitration, the amount of any settlement offer made by you or Favemenu must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.

17.6. Fees

If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. If the arbitrator finds the arbitration to be non-frivolous, Favemenu will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America. You and Favemenu further agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. If a claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (1) Solely on the basis of documents submitted to the arbitrator; or (2) Through a non-appearance based telephone hearing.

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 governed by the JAMS Rules. In that case, you agree to reimburse Favemenu for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS 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.

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 fourteen (14) days of the arbitrator’s ruling on the merits.

17.7. No Class or Representative Actions

YOU AND FAVEMENU 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 Favemenu 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 any court or arbitrator determines that this “No Class or Representative Actions” section is void or unenforceable for any reason or that an arbitration can proceed on a class or representative basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

17.8. 30-Day Right to Opt Out

You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by submitting a request via email at love@favemenu.co. The notice must be sent within thirty (30) days of your creating an account with Favemenu or the effective date of the first set of Terms containing a Dispute Resolution and Arbitration section, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Favemenu also will not be bound by them. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND FAVEMENU RELATING TO YOUR WORK AS AN EMPLOYEE OR USE OF THE PLATFORM AS AN INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT (INCLUDING BUT NOT LIMITED TO THE FLEET AGREEMENT) GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE AN INDEPENDENT CONTRACTOR, OPTING OUT OF THE ARBITRATION AGREEMENT SET FORTH IN THIS SECTION 17 WILL NOT AFFECT ANY AGREEMENT BY YOU TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT (INCLUDING BUT NOT LIMITED TO THE FLEET AGREEMENT) WITH FAVEMENU.

17.9. Modifications

Except for inconsequential changes that do not affect any rights or obligations herein, Favemenu will provide thirty (30) days' notice of any changes to this section by posting on the Platform, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the Platform or sent to you, or otherwise notified when you are logged into your account. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Modifications" is not enforceable or valid, then this subsection shall be severed from the section entitled “Dispute Resolution and Arbitration,” and the court or arbitrator shall apply the first Dispute Resolution and Arbitration section in existence after you began using the Platform. You may otherwise reject the change by sending us written notice within thirty (30) days of the change to Favemenu’s address for Notice, in which case your account with Favemenu will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, will survive.

18. Modification of these Terms

Except as explicitly described in the Dispute Resolution and Arbitration section, we reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Platform, except as set forth below. These Terms identify the date of last update. Except as explicitly described in the Dispute Resolution and Arbitration section, your use of the Platform following any such change constitutes your agreement to be bound by the modified Terms. In the case of material changes to these Terms, we will make reasonable efforts to notify you of the change, such as through sending an email to the address you may have used to register for an account, through a pop-up window on the Platform, or other similar mechanism.

You acknowledge and agree that if Favemenu modifies any provision of these Terms (including any information referenced at hyperlinks), other than the Dispute Resolution and Arbitration section herein, you will not have a renewed opportunity to opt out of arbitration. You further acknowledge and agrees that unless the Dispute Resolution and Arbitration section herein is materially different from any prior arbitration provision with Favemenu to which you may be bound, your acceptance of these Terms does not create a renewed opportunity to opt out of arbitration (if applicable).

Except as explicitly described in the Dispute Resolution and Arbitration section, material changes to these Terms will be effective upon the earlier of: (1) Your first use of the Platform with actual notice of such change, or (2) thirty (30) days from posting of such change.

Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.

19. Confidentiality

You acknowledge and agree that when using the Platform, you may have direct or indirect access or exposure to Favemenu’s confidential information ("Confidential Information"). Confidential Information includes Favemenu’s data, provider IDs, user information, delivery recipient information, delivery provider information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other nonpublic information (whether disclosed in writing or verbally) that Favemenu designates as being proprietary or confidential or that you should reasonably know to treat as confidential.

You acknowledge and agree that: (1) all Confidential Information shall remain the exclusive property of the Favemenu; (2) you shall not use Confidential Information for any purpose except in furtherance of your use of the Platform; (3) you shall not disclose Confidential Information to any third party; and (d) you shall not store or keep Confidential Information and shall return or destroy (with confirmation of destruction) all Confidential Information upon the termination of your use of the Platform or at the request of Favemenu.

Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (1) is or becomes part of the public domain through no action or omission by you; (2) was possessed by you prior to your use of the Platform without an obligation of confidentiality; or (3) is disclosed to you by a third party having no obligation of confidentiality with respect thereto.

20. General

Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and Favemenu agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for the purpose of litigating any Dispute. We operate the Platform from our offices in California, and we make no representation that materials included in the Platform are appropriate or available for use in other locations. No joint venture, partnership, employment, or agency relationship exists between you, Favemenu or any third-party provider as a result of the Terms or use of the Platform.

Waiver and Severability. Except as explicitly described in the Dispute Resolution and Arbitration section, if any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of Favemenu to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Favemenu in writing.

Entire Agreement. These Terms comprise the entire agreement between you and Favemenu and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained in these Terms.

21. 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 Services 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 Platform or to receive further information regarding use of the Platform.

22. Notice Regarding Apple

To the extent that you are using our mobile applications on an iOS device, you further acknowledge and agree to the terms of this Section 22. You acknowledge that these Terms are between you and Favemenu only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Platform and the content thereof.

Apple has no obligation whatsoever to furnish any maintenance and support platforms with respect to the Platform. In the event of any failure of the Platform to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Platform.

Apple is not responsible for addressing any claims by you or any third party relating to the Platform or your possession and/or use of the Platform, including, but not limited to: (1) Product liability claims; (2) Any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (3) 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 Platform and/or your possession and use of the mobile application infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Platform. 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: (1) 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 (2) You are not listed on any U.S. Government list of prohibited or restricted parties.

 

 

Terms of Service - SELLER ACCOUNT

Effective January 1, 2020

These are the terms and conditions of the agreement between the Merchant and Favemenu. Words that are capitalized have a specific, defined meaning. At the end of these terms and conditions there’s a list of those definitions.

Incorporation: What’s included in this agreement?

By using the Platform or the Favemenu Merchant Dashboard, or signing or agreeing to a Sign-Up Form, the Merchant agrees to the terms and conditions of this agreement.

This agreement includes:

  • these terms and conditions;
  • certain information on the Favemenu Merchant Dashboard;
  • the Sign-Up Form, if applicable; and
  • documents incorporated by reference or by hyperlink, such as the Favemenu Privacy Policy, which applies to collection, storage, use, and disclosure of personal information by Favemenu.

This agreement is the entire agreement between the parties. All prior agreements, discussions, understandings, and negotiations, relating to the subject matter of this agreement, whether verbal or in writing, are superseded and replaced by this agreement.

PLEASE REVIEW THIS AGREEMENT CAREFULLY, IN PARTICULAR THE MUTUAL ARBITRATION PROVISION IN THE DISPUTES SECTION, AND THE LIMITATION OF LIABILITY SECTION.

By using the Platform or the Favemenu Merchant Dashboard, or signing or agreeing to a Sign-Up Form, the Merchant also acknowledges and agrees that it has read and fully understands the terms of this agreement, and has entered this agreement based on its own judgment and the advice of independent legal counsel (if sought).

Services: What does Favemenu do for the Merchant?

The Merchant wants access to, and Favemenu is providing access to, our Platform.

Payment, refunds, and taxes: How does the Merchant pay Favemenu for using the Platform?

Stripe Connect: The Merchant acknowledges and agrees that:

  • Favemenu may set up and administer a Stripe Connect account on the Merchant’s behalf.
  • The Merchant agrees to the Stripe Connected Account Agreement which is incorporated into this agreement by reference. 
  • The Merchant, and not Favemenu, may be the “merchant of record” for certain orders on the Platform, and for any DaaS Delivery.

Payments: The Merchant agrees to pay Favemenu by Favemenu deducting the Platform Fee, Customer Fees, Markup, Favemenu Sales Taxes, and Refunds from:

  • the Merchant’s Stripe Connect account; or
  • any payments due from Favemenu to the Merchant.
  • there are insufficient funds in the Merchant’s Stripe Connect account for Favemenu to make a deduction permitted under this Agreement; or
  • a payment due from Favemenu to the Merchant is less than the amount Favemenu is entitled to deduct from that payment under this Agreement,

then Favemenu may invoice the Merchant for amounts owed to Favemenu, and the invoice will be due and payable within 30 days.

The parties acknowledge and agree that, except for a DaaS Delivery, Favemenu may charge Customers on the Platform a Markup, and Customer Fees, in addition to Customer payments for Products. Favemenu may retain the Markup and Customer Fees, or may deduct the Markup and Customer Fees from the Merchant’s Stripe Connect account, or from payments due from Favemenu to the Merchant, as applicable.

Further, the parties acknowledge and agree that any percentage based fees, such as the Percentage Fees, will be applied to the Retail Price. Payments from Favemenu to the Merchant do not automatically include Customer payments for Products if the applicable order is subsequently cancelled by the Customer and the Merchant is notified of that cancellation.

Pricing: The Merchant must provide Favemenu with the names, descriptions, images, and pricing for Products sold through the Platform, except for Products only made available through a DaaS Delivery. The prices of Products provided to Favemenu pursuant to this section must be no higher than the price of the same Product that the Merchant provides to a Favemenu Competitor. If the prices of Products provided to Favemenu by the Merchant pursuant to this section are higher than the price of the same Product provided to a Favemenu Competitor, the Merchant will pay Favemenu the Merchant Price Gap.

Taxes: The Merchant must provide Favemenu with the sales tax rates applicable to each Location on the Platform, and the Products made available on the Platform from that Location, except for Products only made available through a DaaS Delivery. The Merchant must pay or reimburse Favemenu for any sales, use, or other tax, duty or charge of any kind that is levied or imposed on the Merchant’s use of the Platform, excluding any tax based on Favemenu’s net income.

Marketplace Facilitator Laws: In jurisdictions where Favemenu is deemed to be a Marketplace Facilitator for Product sales facilitated through the Platform, and once Favemenu has confirmed with the Merchant its functional and technical ability to do so in accordance with applicable law, rule or regulation, Favemenu will calculate, collect, remit, and refund, as applicable, sales tax on Product sales by the Merchant through the Platform, but not for any DaaS Delivery. If Favemenu (a) is not classified as a Marketplace Facilitator, (b) has not notified the Merchant that it has functional and technical ability to comply with Marketplace Facilitator Laws, or (c) no Marketplace Facilitator Laws apply to the applicable Product or Location, then the Merchant will, and Favemenu will not, calculate, remit, and refund sales taxes, and Favemenu will only collect those sales taxes from Customers and remit them to the Merchant.

Special Taxes: To the extent that any Special Taxes apply, Favemenu may calculate and collect those Special Taxes if the Platform has the technical capability to do so, and where collected will remit them to the Merchant, but the Merchant is responsible for advising Favemenu of any applicable Special Taxes, and remitting those to the applicable authorities. The Merchant will be responsible for all matters relating to Special Taxes if the Platform does not have the technical capability to calculate and collect those Special Taxes.

Reconciliations: The Merchant must (a) regularly review transaction information provided through the Favemenu Merchant Dashboard, (b) confirm the accuracy of transactions, fees, and charges, and (c) promptly communicate to Favemenu any errors or inaccuracies. Favemenu’s policies on the timeframes for the Merchant to review certain transaction types and make requests for payments will be displayed on the Favemenu Merchant Dashboard from time to time, and certain requests for payments may also be made by the Merchant through the Favemenu Merchant Dashboard. If the Merchant does not review transactions and make requests for payment within the timeframes set out in the applicable Favemenu policies, Favemenu may apply its discretion in accepting or rejecting Merchant’s request. The Merchant will be deemed to have agreed to and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if the Merchant does not communicate a written claim or objection to Favemenu regarding such transaction, fee, charge or order within at least 60 days.

Title: The Merchant acknowledges and agrees that:

  • the Merchant holds title to the Products until they are picked up from a Location;
  • title passes from the Merchant to the Customer when the Products are picked up at the Location, either by the Customer or by a Courier; and
  • neither a Courier nor Favemenu holds title to, or acquires any ownership interest in, any Products, pursuant to this agreement.

Term and termination: How long does this agreement last?

This agreement starts on the Start Date, and continues for the Term.

Either party may terminate the agreement for any reason, or for no reason, by giving the other party 30 days’ prior written notice. Further, Favemenu may terminate the agreement with immediate effect by giving the Merchant written notice, if Merchant:

  • breaches the terms of this agreement;
  • becomes insolvent or bankrupt, or makes an assignment for the benefit of creditors;
  • is involved in any scandal or other significant negative publicity event(s), which in Favemenu’s reasonable judgement may damage the reputation of Favemenu; or
  • assigns or transfers, either voluntarily or by operation of law, any or all of its rights and obligations under this agreement without having obtained the prior consent of Favemenu.

Franchisees: What happens if the Merchant has franchisees?

If a Location is owned or operated by a Franchisee, the Merchant must ensure that Franchisee separately agrees to the terms of this agreement in relation to that Franchisee’s Locations.

Until a Franchisee has agreed to the terms of this agreement, the applicable Franchisee Locations are governed by this agreement, and the Merchant is directly responsible for the Franchisee’s compliance with this agreement in relation to those Locations, and any breach of this agreement by such Franchisees will be deemed a breach of this agreement by the Merchant.

Any intellectual property licenses provided by the Merchant to Favemenu pursuant to this agreement also extend to, and apply to, the use of the Merchant’s Brand in relation to Franchisees.

The Merchant represents and warrants that it has all required authorizations to receive information from Favemenu about the Franchisees and Franchisees’ Locations, including Confidential Information. If the Merchant is also a Franchisee, the Merchant authorizes Favemenu to share information with its franchisor (including its franchisor’s parent companies or affiliates, as applicable), about the Merchant, its Locations, and including Merchant’s Confidential Information.

Tablets: What happens when Favemenu sends you a tablet?

Favemenu may provide the Merchant with a computerized tablet pursuant to this agreement. If the Merchant receives a computerized tablet from Favemenu, this section will apply. If the Merchant does not receive a computerized tablet from Favemenu, this section will not apply. For simplicity, a computerized tablet in this section is referred to as a “tablet”.

Favemenu may charge the Merchant reasonable Equipment Fees.

If:

  • this agreement is terminated;
  • the Merchant gives someone access to the tablet (other than authorized Merchant employees);
  • the Merchant does not activate the tablet within 15 days of receipt; or
  • there ceases to be an operational need for Merchant to retain a tablet,

then, the Merchant must return the tablet to Favemenu, and Favemenu may do any of the following, or a combination of the following:

  • charge the Merchant the replacement cost of the tablet;
  • implement an alternative method of placing orders with the Merchant; and
  • immediately terminate this agreement.

Intellectual Property: How do the parties use each other’s Brands?

The parties grant each other for the Term a fully paid, royalty-free, non-exclusive, non-sublicensable, revocable license to use each other’s Brands in marketing materials, including use by Favemenu of the Merchant’s Brand within the Platform and outside of the Platform, and in media releases. Use of the Favemenu Brand must comply with the Favemenu marketing guidelines, as made available on the internet from time to time. Each party’s use of the other party’s Brand or Trademarks, and all goodwill generated from that use, will insure to the benefit of the owner of the applicable Brand or Trademarks.

Product returns: How do Customers return Products to the Merchant?

If a Customer wishes to return a Product to the Merchant for any reason, Favemenu may instruct the Customer to contact the Merchant directly. The Merchant or the Customer, and not Favemenu, will be responsible for the cost of returning a Product to the Merchant, subject to the Merchant’s own policies and procedures for product returns.

The Merchant must notify Favemenu if Favemenu must issue a Refund to the Customer because of a Product return, and Favemenu will use reasonable business efforts to issue the Refund to the Customer where applicable.

Platform integration with websites: How does Favemenu accept orders through third parties?

The Merchant acknowledges and agrees that Favemenu may enter into agreements with the operators of Aggregator Platforms in order to integrate the Platform directly with those Aggregator Platforms.

The Merchant acknowledges and agrees that such agreements and integrations may, among other things, enable potential Customers of the Merchant who are browsing, or otherwise using the Aggregator Platform to order from the Merchant, either directly through the Platform, or directly from the Aggregator Platform.

The Merchant authorizes Favemenu to share the following information with Aggregator Platforms in relation to the Location(s): (a) address, (b) telephone number(s), (c) ratings and reviews, (d) Product lists, descriptions, and images, (e) pricing information, (f) pickup and delivery time estimates, and (g) any other information which Favemenu decides, in its discretion, to provide to the Aggregator Platform.

Representations and warranties: What key assurances do the parties give each other?

Mutual representations, warranties, and covenants: Each party hereby represents and warrants that:

  • it has full power and authority to enter into this agreement and perform its obligations;
  • it is duly organized, validly existing and in good standing under the laws of its origin jurisdiction;
  • it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing its obligations under this agreement;
  • it will comply with all applicable laws and regulations in its performance of this agreement; and
  • the content, media and other materials used or part of this agreement do not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party.

Merchant representations, warranties, and covenants: The Merchant further represents and warrants that:

  • it will comply with all applicable laws, including but not limited to licenses, preparation and handling of Products, food beverage, and product health, safety, packaging, and accessory laws, rules, and regulations;
  • all Products sold, and pricing for those Products, will comply with applicable law, and Products will not include any item or substance which violates any federal, state, or local law, rule, or regulation, or for which delivery through the Platform (including a DaaS Delivery), violates any federal, state, or local law, rule, or regulation;
  • no Regulated Products will be made available through the Platform (including as a DaaS Delivery), except as agreed with Favemenu in writing;
  • it will remit all taxes owed to the relevant authorities, and all tax rate information provided to Favemenu is accurate, whether provided directly or indirectly;
  • all information provided to Favemenu pursuant to this agreement, whether directly or indirectly, is legally permitted to be shared with Favemenu, is complete, and no such information is inaccurate, misleading, or otherwise deceptive, including but not limited to disclosing allergens in Product descriptions; and
  • it has notified Favemenu of any unique requirements applicable to a Product or class of Products being made available to Customers through the Platform, such as requirements to display calorie content, warnings, or disclaimers to Customers, or requirements that Customers agree to or opt-in to other terms and conditions.

Regulated Products: Further to the above, the Merchant must only make Regulated Products available on the Platform (including as a DaaS Delivery):

  • in locations where Favemenu and the Merchant agree that the sale and delivery (as applicable) of those Regulated Products through the Platform is legally permitted; and
  • when those Regulated Products are assigned on the Platform, or through the applicable DaaS Delivery, as requiring identification checks.

For clarity, when the Merchant directly adds a Regulated Product to the Platform (through the 'menu manager', as a DaaS Delivery, point-of-sale or other integration, or similar means), the Merchant is responsible for assigning that Regulated Product as requiring identification checks.

If the Merchant is selling Regulated Products, the Merchant represents, warrants and covenants that:

  • it holds all required permits or licenses to sell Regulated Products through the Platform, including as a DaaS Delivery;
  • it currently complies and will comply with all laws applicable to the sale of the Regulated Products;
  • it is responsible to applicable regulatory authorities for Favemenu’s activities and for any sales or delivery of Regulated Products under this agreement;
  • it will maintain all permits and licenses necessary to fulfill orders under this agreement; and
  • it will retain order records for any time period required by law, and in a manner fully compliant with applicable law.

The Merchant acknowledges and agrees that orders will be fulfilled based on its legal rights under its permits and licenses. Favemenu makes no representations that it holds any permits or licenses for the sale or delivery of Regulated Products, and will not have the authority to offer, and will not be deemed to have offered, Regulated Products products for sale.

Favemenu and the Merchant acknowledge and agree that Favemenu may in its ultimate discretion remove or suspend a Product or Location from the Platform if in Favemenu’s reasonable opinion the continuing availability of that Product or Location on the Platform will cause negative public relations or legal consequences for either party. For clarity, Favemenu reserves the right to remove certain categories of Products, or certain categories of Regulated Products, from the Platform based on Favemenu’s company policies.

The above representations and warranties are true as of the Start Date and the parties represent and warrant that they will continue to be true throughout the Term.

Indemnities: When are we required to reimburse each other?

An Indemnifying Party will, at its own expense, indemnify, defend and hold harmless the Indemnified Party from and against all Claims brought against the Indemnified Party by a third party arising from or in connection with:

  • the gross negligence or willful misconduct of the Indemnifying Party, or its employees, contractors or agents in connection with the performance of this agreement;
  • any breach of this agreement by the Indemnifying Party or its employees, contractors or agents; or
  • any violation or claimed violation of a third party’s rights resulting in whole or in part from use of Indemnifying Party’s Trademarks.

In addition, the Merchant will, at its own expense, indemnify, defend and hold harmless Favemenu, its subsidiaries, affiliates, officers, directors, agents, or employees from and against all Claims brought against Favemenu by a third party arising from or in connection with any violation or alleged violation of any rule, regulation, law, or health and safety code, applicable to Merchant’s Products or obligations under this agreement as well as any Claims for illness or bodily injury resulting from Merchant’s Products made available through the Platform, including a DaaS Delivery.

The Indemnified Party will provide the Indemnifying Party with:

  • prompt written notice of such Claim;
  • control over the defense and settlement of such Claim, provided that the Indemnifying Party must not enter into a settlement that involves a remedy other than the payment of money by the Indemnifying Party without the express written consent of the Indemnified Party; and
  • proper and full information and assistance to settle and/or defend any such claim.

Limitation of liability: What’s Favemenu’s maximum liability to the Merchant?

TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, FAVEMENU’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING FROM THIS AGREEMENT WILL NOT EXCEED $25,000. FAVEMENU WILL NOT BE LIABLE TO THE MERCHANT FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS OF PROCURING REPLACEMENT SERVICES, REGARDLESS OF WHETHER SUCH DAMAGE OR THE POSSIBILITY THEREOF WAS DISCLOSED TO, KNOWN TO, OR FORESEEABLE BY THE PARTY FROM WHOM SUCH DAMAGES ARE SOUGHT. THIS LIMITATION WILL APPLY TO ALL CLAIMS UNDER ALL THEORIES OF LAW AND EQUITY, EXCEPT WHERE PROHIBITED BY LAW. FOR CLARITY, FAVEMENU WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES TO THE MERCHANT FOR THE MERCHANT’S LOSS OF ANY LICENSES OR PERMITS REQUIRED BY THE MERCHANT FOR THE OPERATION OF THE MERCHANT’S BUSINESS.

Disclaimer: These are important disclaimers.

EXCEPT AS SET OUT IN THIS AGREEMENT, FAVEMENU MAKES NO REPRESENTATIONS, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

THE MERCHANT ACKNOWLEDGES AND AGREES THAT THE PLATFORM, ANY FAVEMENU APPLICATION PROGRAMMING INTERFACE, AND ANY TABLET PROVIDED TO THE MERCHANT ARE PROVIDED “AS IS” AND “AS AVAILABLE”.

THE MERCHANT ACKNOWLEDGES AND AGREES THAT FAVEMENU DOES NOT PROVIDE COURIER SERVICES. SERVICES PROVIDED THROUGH THE PLATFORM ARE PROVIDED BY THIRD PARTY COURIERS WHO ARE INDEPENDENT CONTRACTORS AND NOT EMPLOYEES OR AGENTS OF FAVEMENU.

Confidentiality: How do the parties manage each others’ confidential information?

Each party agrees that it will only disclose the other party’s Confidential Information to its employees and agents who have a need to know such Confidential Information and who are bound by written obligations of confidentiality, and will not use the Confidential Information in any way other than as necessary to perform its obligations under this agreement.

Such prohibition on disclosure of Confidential Information will not apply to the extent disclosure is required as a matter of law, provided that the party subject to the applicable legal obligation gives the other party prior written notice of the obligation and reasonably assists in obtaining a protective order prior to making such disclosure.

Each party will destroy the other party’s Confidential Information on request by the party that owns the Confidential Information, and will certify that the destruction has occurred.

Insurance: What insurance does the Merchant need to have?

During the Term, the Merchant must maintain “Commercial General Liability” and, if required by law, “Worker’s Compensation” insurance.

The Commercial General Liability insurance policy must have limits of coverage not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.

The insurance amounts indicated are minimum requirements and not limits of liability, and they are not to be construed as either party’s consent to substitute, alter, or otherwise affect the application of the “limitation of liability” section of this agreement. All coverage must be written on an “occurrence” form.

Disputes: How do the parties deal with disputes?

Arbitration of disputes: The parties mutually agree to resolve any and all disputes between them exclusively through final, binding, and individual arbitration instead of filing a lawsuit in court (except as otherwise provided below). However, this mutual arbitration provision does not cover disputes that, as a matter of law, may not be subject to pre-dispute arbitration agreements.

Pre-arbitration requirements: Before commencing individual arbitration, the parties must engage in a good-faith effort to resolve any claim covered by this mutual arbitration provision through an informal telephonic dispute resolution conference. The party initiating the claim must give notice to the other party in writing of its intent to initiate an informal telephonic dispute resolution conference. The informal telephonic dispute resolution conference must be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple merchants initiating claims cannot participate in the same informal telephonic dispute resolution conference.

The Dispute Negotiation Period must not exceed 45 days, unless the parties mutually agree to an extension. Engaging in an informal telephonic dispute resolution conference is a condition precedent that must be fulfilled before commencing individual arbitration. The statute of limitations and any filing fee deadlines will be tolled while the parties engage in the informal dispute resolution process.

Formal requirements to begin arbitration: If informal resolution efforts fail, either party may initiate arbitration by notifying the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. The demand for arbitration must include:

  • the legal entity name, telephone number, mailing address, and applicable e-mail address, of the party seeking arbitration;
  • a statement of the legal claims being asserted and the factual bases of those claims;
  • a description of the remedy or remedies sought;
  • the party’s portion of the applicable filing fees; and
  • the original personal signature of and authorized representative of the party seeking arbitration.

If the party seeking arbitration is represented by counsel, counsel must also provide an original personal signature on the demand for arbitration (a digital, electronic, copied, or facsimile signature is not sufficient).

By signing the demand for arbitration, counsel and authorized representative of the party seeking arbitration each certify to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

  • the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution;
  • the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and
  • the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Appointment of arbitrator: The arbitrator must be an attorney with experience in the law underlying the dispute. The parties will be required to meet and confer to select a neutral arbitrator or arbitration provider. If the parties are unable to mutually agree upon an arbitrator or arbitration provider, then either party may invoke 9 U.S.C. § 5 to request that a court of competent jurisdiction appoint an arbitration provider. Any arbitration provider appointed by a court under 9 U.S.C. § 5 will conduct arbitration solely on an individualized basis.

Once the parties mutually agree upon a neutral arbitrator, or an arbitrator provider is appointed under 9 U.S.C. § 5, the ensuing arbitration must commence pursuant to the rules of the designated arbitration provider, except that:

  • unless applicable law provides otherwise, as determined by the arbitrator, the party initiating the arbitration will bear the cost of any and all filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings;
  • if a party timely serves an offer of judgment under Federal Rule of Civil Procedure 68, or any other state-law equivalent, and the judgment that the other party finally obtains is not more favorable than the unaccepted offer, then the other party must pay the costs, including filing fees, incurred after the offer was made;
  • the arbitrator may issue orders (including subpoenas to third-parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes;
  • except as provided in the class action waiver and representative action waiver, the arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, including but not limited to the imposition of sanctions under the Federal Rules of Civil Procedure, but will not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator must apply the Californian state or federal substantive law, or both, as is applicable;
  • the arbitrator may hear motions to dismiss and/or motions for summary judgment. An arbitrator may not permit the filing of a motion for summary judgment until after the parties have conducted discovery to support their claims and defenses. Any motion to dismiss and/or motion for summary judgment will otherwise be governed by the standards of the Federal Rules of Civil Procedure governing such motions;
  • the arbitrator’s decision or award will be in writing with findings of fact and conclusions of law;
  • any finding that a claim or counterclaim was filed for purposes of harassment or is frivolous will entitle the other party to recover its, his, or her attorneys’ fees, costs, and expenses;
  • either party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this section may be rendered ineffectual; and
  • the arbitrator may consider, but under no circumstances is the arbitrator bound by, decisions reached in separate arbitrations. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this mutual arbitration provision, either party may seek to enjoin the arbitration proceeding in a court of competent jurisdiction, and the arbitration will automatically be stayed pending the outcome of that proceeding.

Right to opt out of arbitration: Arbitration is not a mandatory condition of the Merchant contractual relationship with Favemenu, and therefore the Merchant may opt out of this mutual arbitration provision. In order to opt out, the Merchant must notify Favemenu of the Merchant’s intention to opt out by submitting to Favemenu a written notice stating that the Merchant is opting out of this mutual arbitration provision. In order to be effective, the Merchant opt-out notice must be postmarked or received by Favemenu within 30 days of the Merchant’s acceptance of this agreement. If the Merchant does not opt out within 30 days of the Merchant’s execution of this agreement, the Merchant’s failure to do so will constitute mutual acceptance of the terms of this mutual arbitration provision by Favemenu and the Merchant.

If the Merchant opts out of this mutual arbitration provision and at the time of the Merchant’s receipt of this agreement the Merchant was bound by an existing agreement to arbitrate disputes arising out of or relating to the Merchant use of the Platform, then that existing arbitration agreement will remain in full force and effect, and either party may apply to a court under 9 U.S.C. § 5 for an order appointing an arbitrator or arbitration provider to resolve in individual arbitration the parties’ disputes arising out of or relating to such existing agreement to arbitrate.

The Merchant’s decision to opt out of this mutual arbitration provision will relieve the Merchant only of the Merchant obligation to arbitrate the disputes specified in this mutual arbitration provision, and does not relieve the Merchant of any obligation to arbitrate disputes not specified in this mutual arbitration provision that might arise under any other agreement to which the Merchant may be bound. Similarly, the Merchant’s decision to opt out of another arbitration provision contained in any other agreement will not relieve the Merchant of the Merchant’s obligation to arbitrate disputes pursuant to this mutual arbitration provision.

Federal Arbitration Act: Favemenu and the Merchant expressly agree that this mutual arbitration provision is a licensing agreement governed exclusively by the FAA. Favemenu and the Merchant expressly agree that the FAA will exclusively govern the interpretation and enforcement of this mutual arbitration provision, and that the FAA will apply to any and all disputes between the parties. The parties expressly agree that this Agreement will be governed by the FAA even in the event the Merchant or Favemenu are otherwise exempted from the FAA. Any disputes in this regard will be resolved exclusively by an arbitrator. If, but only if, the arbitrator determines the FAA does not apply, the state law governing arbitration agreements in California will apply.

Certain matters may be heard in court: Only an arbitrator, and not any federal, state, or local court or agency, will have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this mutual arbitration provision, including without limitation any dispute concerning arbitrability. However, the preceding section will not apply to any dispute relating to or arising out of the class action waiver or representative action waiver, each set out below, and including, but not limited to, any claim that all or part of the class action waiver or representative action waiver is unenforceable, unconscionable, illegal, void, or voidable, or that a breach of either such waiver has occurred, which must proceed in a court of competent jurisdiction and cannot be heard or arbitrated by an arbitrator. Moreover, all disputes relating to or arising out of the payment of arbitration fees will be decided only by a court of competent jurisdiction and not by an arbitrator. In addition, all disputes relating to whether either party has satisfied the condition precedent of engaging in the pre-arbitration informal telephonic dispute resolution conference discussed below, will be decided only by a court of competent jurisdiction and not by an arbitrator. The parties agree that any and all due dates for arbitration fees will be tolled while the parties resolve a dispute relating to or arising out of the class action waiver, representative action waiver, and/or the payment of arbitration fees.

Class action waiver: To the greatest extent permitted by applicable law, the parties agree that any legal proceeding arising out of or relating to this agreement, will be conducted solely on an individual basis. Both parties agree not to seek to have any legal dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which either party acts or proposes to act in a representative capacity. The parties further agree that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding.

Modifications: How can this agreement be changed?

Favemenu may update or modify this agreement at any time without prior notice, and such changes will be effective immediately upon being posted on the Favemenu website, through the Platform, or on the Favemenu Merchant Dashboard. The Merchant’s use of the Platform following any such change constitutes agreement to be bound by the modified agreement.

For material changes to the agreement, Favemenu will make reasonable efforts to notify the Merchant of the change, such as sending an email to the address the Merchant used to register for an account, through a pop-up window on the Platform or Favemenu Merchant Dashboard, or other similar mechanism. Failure to provide notice of such material changes to the agreement does not prevent the changes from binding the Merchant. The Merchant’s continued use of the Platform or Favemenu Merchant Dashboard following any such change becoming effective, constitutes consent to such changes, whether the Merchant was notified of the changes or not.

Assignment and novation: Can the parties make someone else responsible for this agreement?

The Merchant must not assign or novate this agreement without Favemenu’ prior written permission, but Favemenu may assign or novate this agreement in its discretion.

Relationship: What’s the legal relationship between the parties?

The parties to this agreement are independent contractors. The parties are not partners, agents, parties to a joint venture, nor do the parties have an employee and employer relationship. Except as set forth in this agreement, each party is responsible for its own costs of conducting business and performing its obligations under the agreement.

Force Majeure: What happens if the earth opens up and swallows us?

Nonperformance by either party due to a force majeure event is excused.

Survival: Which terms and conditions still apply after the agreement is over?

The terms and conditions of this agreement which, by their nature, are intended to still apply, even if the agreement is terminated, or expired, (e.g. confidentiality terms, or indemnification terms), will continue to apply even if the agreement is terminated or expires.

Severability: What happens if a section or part of a section is invalid?

If any part of this agreement is unenforceable, the remainder of the agreement is in full force and effect.

Waiver: What’s the effect of waiving rights under the contract?

If a party waives a breach of this agreement by the other party, it will not by that waiver be deemed to have waived any other breaches of this or any other agreement between the parties.

Governing law and venue: Which jurisdiction deals with disputes?

This agreement is governed by the law of California. The parties agree that all disputes outside of the arbitration provisions will be heard in federal or state courts of San Francisco, California.

Definitions and interpretation: What do all the capitalized words mean?

Definitions: Capitalized words in this agreement have the meanings set out below:

  • Age Restricted Products means Products where Customers must be a minimum age to purchase, such as alcohol, tobacco, or certain pharmaceutical products.
  • Aggregator Platform means a third party website, application, technology or social media platform, search engine, or similar method of collecting, mapping, or reviewing products, and the companies, businesses or entities that own, operate or control them.
  • Brand means the collection of a party’s brand identifiers which are generally used together, including but not limited to a combination of Trademarks, Product photography, Product lists and descriptions, slogans, and color schemes. To the extent that a party is a licensee of a third party’s Brand, that Brand is deemed to be the licensee’s Brand for the purposes of this agreement. For clarity, a party may hold, own, or license more than one Brand.
  • Claim means taxes, losses, liabilities, damages, claims, suits, liabilities, costs and expenses including reasonable attorney’s fees and other legal costs.
  • Confidential Information means any confidential, proprietary or other non-public information disclosed by one party to the other party whether disclosed verbally, in writing, in electronic form, or by inspection of tangible objects, including but not limited to any personally identifiable information such as first and last name, email address, phone number, physical address etc.
  • Courier means an independent contractor that uses the Platform and collects Products from a Location and delivers those Products to a Customer.
  • Customer means an individual acquiring Products from Merchant through the Platform including as a DaaS Delivery.
  • Customer Fees means fees charged to the Customer by Favemenu, additional to Customer payments for Products, such as delivery, service, and small cart fees.
  • DaaS Delivery means a delivery completed by a Courier, where the Customer placed the order through the Merchant’s own platform rather than the Platform.
  • DaaS Fees means fees payable for a DaaS Delivery instead of, or additional to, the Platform Fee, with such fees to be charged in accordance with the Favemenu API Pricing Policy, please contact love@favemenu.co for more information.
  • Dispute Negotiation Period means, pursuant to the “disputes” section of this agreement, the time period between (a) the party initiating the claim giving notice to the other party in writing of its intent to initiate an informal telephonic dispute resolution conference, and (b) that informal telephonic dispute resolution conference occurring.
  • Equipment Fees means the fees charged to Merchant for the use, and/or activation, of computerized tablets or other equipment provided by or on behalf of Favemenu, with those fees being displayed on the Favemenu Merchant Dashboard, or the Sign-Up Form, and subject to change from time to time. To the extent of any inconsistency between the Equipment Fees displayed on the Favemenu Merchant Online Dashboard and the Equipment Fees displayed on the Sign-Up Form, the Equipment Fees on the Favemenu Merchant Dashboard prevail. Where Favemenu is entitled to charge the Merchant the replacement cost of a computerized tablet, that replacement cost also constitutes part of the Equipment Fees.
  • FAA means the Federal Arbitration Act (9 U.S.C. §§ 1-16).
  • Franchisee means an independent owner and operator of a Location using the Merchant’s Brand.
  • Hazardous Products means any Products subject to legal or regulatory requirements which are additional to the generally applicable food, beverage and product safety legal or regulatory requirements, including without limitation, firearms, ammunition, weapons (e.g. knives, switchblades etc.), live animals, or cannabis.
  • Indemnified Party means a party to this agreement that has received or is subject to a Claim, and includes that party’s subsidiaries, affiliates, officers, directors, agents, or employees, individually and collectively.
  • Indemnifying Party mmeans the party to this agreement that is not the Indemnified Party.
  • Location means the Merchant’s physical premises and locations, from which Products are made available for collection by Customers or Couriers.
  • Marketplace Facilitator means a marketplace that contracts with merchants to promote their sale of physical property, foods, and services through online platforms.
  • Marketplace Facilitator Laws means laws and regulations that shift the sales tax collection and remittance obligations from merchants to Marketplace Facilitators.
  • Markup means the difference between the price of a Product provided to Favemenu by Merchant, and any higher price actually charged to the Customer for that Product by Favemenu through the Platform.
  • Merchant means the legal entity or entities that enter into this agreement, and includes that entity’s, or those entities’, subsidiaries, affiliates, directors, employees, agents, successors and assignees, as applicable.
  • Merchant Price Gap means the difference between the lowest price of a Product provided to a Favemenu Competitor and the price provided to Favemenu for that Product.
  • Other Fees means fees which may be charged to the Merchant after: (a) Favemenu notifies the Merchant of those fees on the Favemenu Merchant Dashboard, (b) those fees are set out and agreed to in the Sign-Up Form, or (c) Favemenu notifies the Merchant of those fees through other reasonable means of notice.
  • Payment Processing Fees means fees for the primary purpose of covering Favemenu’s payment processing costs, such as fees covering Favemenu’s costs to make payments to the Merchant, or fees covering Favemenu’s costs to receive payments from Customers.
  • Percentage Fees means the percentage(s) identified on the Favemenu Merchant Dashboard, or on the Sign-Up Form (if applicable), based upon the pre-tax purchase price of ordered Products, and may vary between orders delivered to the Customer by Couriers or orders collected by Customers from a Location or between orders subject to a promotion and those not subject to a promotion. If there are categories other than “delivery”, “pickup”, or “marketing” the Percentage Fees applicable for those other categories will also be displayed on the Favemenu Merchant Dashboard or the Sign-Up Form. To the extent of any inconsistency between the Percentage Fees displayed on the Favemenu Merchant Online Dashboard and the Percentage Fees displayed on the Sign-Up Form, the Percentage Fees on the Favemenu Merchant Dashboard prevail.
  • Platform means the Favemenu app and web-based on-demand platform, and includes application programming interfaces used by Merchant to connect Merchant’s systems to the Favemenu app and web-based on-demand platform.
  • Platform Fee means the total of all Percentage Fees, Equipment Fees, Payment Processing Fees, DaaS Fees, and Other Fees.
  • Favemenu means Favemenu Inc., a company registered in Delaware.
  • Favemenu Competitor means any business in the same or similar industry as Favemenu.
  • Favemenu Merchant Dashboard means the online location where Favemenu shares key information with Merchant.
  • Favemenu Privacy Policy means the policy available at https://www.favemenu.co/legals/privacy-policy which Favemenu may change at any time without notice.
  • Favemenu Sales Taxes means sales taxes that Favemenu is required to remit to authorities, such as sales taxes payable under Marketplace Facilitator Laws, or sales taxes applicable to the Percentage Fees or Markup.
  • Products means the goods, items, food, or beverages, made available to Customers by Merchant through the Platform or through a DaaS Delivery, and includes any services provided by the Merchant to the Customer.
  • Retail Price means the price of a Product at a Location, as provided to Favemenu by Merchant, plus any Markup.
  • Refunds means the cost of refunds or credits to Customers, and includes where applicable any Merchant Price Gap.
  • Regulated Products means Age Restricted Products and Hazardous Products.
  • Sign-Up Form means the form signed or agreed to by the Merchant, which supplements the terms and conditions of this agreement, and may set out certain information agreed upon between the parties.
  • Special Taxes means any special, non-sales, or local taxes, fees, or charges, such as soda taxes, or taxes imposed by a city, county or similar local government authority.
  • Start Date means the date that the Merchant first agrees to the terms of this agreement.
  • Stripe Connected Account Agreement means the agreement by that name, available at: https://stripe.com/us/connect-account/legal.
  • Term means the time period from the Start Date until the date that this agreement is terminated or expires.
  • Trademarks means trademarks, trade names, service marks, copyrights (such as Product photography), logos, slogans and other identifying symbols and indicia of the applicable party.

Interpretation: The following also applies to the interpretation of this agreement:

  • Terms used as plurals may also be interpreted as singular, and vice-versa.
  • Any references to dollars or currency means US dollars unless otherwise indicated.
  • If the words “including”, “such as”, “for example”, or similar terms, are used in any section, the words “without limitation” are implied.
  • Any reference to a “party” or “parties” means a party to this agreement.
  • Any references to the Merchant, if the Merchant includes multiple legal entities, means each of those entities jointly and severally.
  • Any hyperlinks includes in this agreement also refer to the future updated versions of those links, and if a hyperlink becomes inactive, or the hyperlinked location of a document in this agreement is amended, the new hyperlink location of the same or updated version of that document applies instead of the incorrect or superseded hyperlink in this document.
  • Headings, notes, and captions used in the agreement are for reference purposes only and should not have any effect on the interpretation of the agreement.