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Terms Of Use

BEFORE YOU CHECK “I ACCEPT”, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING “I ACCEPT” OR USING THE WEBSITE IN ANY MANNER, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE OUR SERVICES. WE RESERVE THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT IN THE FUTURE AND ANY CHANGES WILL APPLY TO YOUR USE OF THE WEBSITE AFTER THE DATE OF SUCH CHANGE.

1. ACCEPTANCE OF TERMS

foodLuck LLC, a California limited liability company (hereinafter referred to as “Company”, “we”, “our” or “us”), provides the website, www.foodLuck.com (the “Site”), including all information, documents, communications, files, images, text, graphics, software, software applications and products available through the Site (collectively, the “Materials”) and all services operated by Company and third parties through the Site and Company’s mobile application, including food delivery services, (collectively, the “Services”), available for your use subject to the terms and conditions set forth in this document and any changes to this document that we may publish from time to time (collectively, the “Terms of Use” or “Agreement”).  The Company’s delivery service mobile application is referred to herein as the “App.” The Services constitute a technology platform that enables users of the App or Site to order from local restaurants and arrange for pick-up and delivery of such orders.

We reserve the right to change the Terms of Use and other guidelines or rules posted on the Site from time to time at our sole discretion. Your continued use of the Site, or any Materials or Services accessible through it, after such notice has been posted constitutes your acceptance of the changes. Your use of the Site will be subject to the most current version of the Terms of Use, rules and guidelines posted on the Site at the time of such use. You should periodically check these Terms of Use to view the then current terms. If you breach any of the Terms of Use, your authorization to use this Site automatically terminates.

We further reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Materials and/or Services (or any part thereof) with or without notice. You agree that, unless we have agreed otherwise in writing, we shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Materials and/or Services (or any part thereof).

2. DEFINED TERMS FOR SITE CONTENT

All restaurant-supplied content (including menus), information, materials, files, communications, documents, text, videos and images are referred to collectively as “Restaurant Content.” “Our Content” or “Company Content” means all materials provided by us. The terms and conditions expressed in this agreement apply to all users and visitors of this Site and the App, and we may refer to all Site and App users as “you” or “your/s” in this Agreement.

3. USER ACCOUNTS

In order to access or to make use of the App, Materials and/or Services (including to place orders and request deliveries) you will need to register and create a user account (an “Account”). You also agree:

  1. that you will not use an Account that is created by another user;
  2. that you will supply only complete and accurate information in registering for an Account;
  3. that you are solely responsible for the activity that occurs on and through your Account, that you will keep your Account password secure at all times, and that we will not be liable for your losses caused by any unauthorized use of your Account; and
  4. that if your Account has been compromised for any reason, you will immediately notify us of the security breach or unauthorized use of your Account.

We reserve the right to (a) take appropriate legal action against anyone who, in our sole discretion, violates these Terms of Use; (b) in our sole discretion without notice and without limitation or liability, refuse, restrict access to or availability of, or terminate any user’s Account for any reason.

4. INTELLECTUAL PROPERTY; LIMITED LICENSE

The Materials and Services on this Site and the App, as well as their selection and arrangement, are protected by copyright, trademark, patent, and/or other intellectual property laws, and any unauthorized use of the Materials or Services at this Site or on the App may violate such laws and these Terms of Use. You agree not to copy, republish, frame, download, transmit, modify, assign, distribute, or create derivative works based on the App, the Site, its Materials, or its Services or their selection and arrangement, except as expressly authorized herein. In addition, you agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with the Site or the App.

In addition to the Materials and Services offered by us, this Site and the App also make available materials, links, information, products and/or services provided by local restaurants (collectively, the “Restaurant Products and Services”). The Restaurant Products and Services may be governed by separate agreements that accompany such products or services. We offer no guarantees and assume no responsibility or liability of any type with respect to the Restaurant Products and Services. You understand and agree that we merely provide you with a platform through which to order from local restaurants and have the food delivered directly to you. We do not represent any of the restaurants we feature on our Site or App and take no responsibility for the quality of food ordered through the Site or App. You agree that you will not hold us responsible or liable with respect to Restaurant Products and Services or seek to do so, even if we recommended the particular restaurant. You further understand and agree that all dealings with restaurants accessed through the Site or App is at your own risk. We are not a party to any transactions between you and restaurants accessible through the Site or App; you understand that we merely facilitate the transaction.

Except as expressly indicated to the contrary elsewhere on this Site, you may use, view, and download Our Content and Restaurant Content available on this Site and App subject to the following conditions:

  1. Our Content and Restaurant Content may be used solely for personal purposes. You may not commercially exploit any of the Site content without express permission from us.
  2. You may not remove any copyright or other proprietary notices contained in Our Content or Restaurant Content. 
  3. We reserve the right to revoke the authorization to view, use and download Our Content and Restaurant Content available on this Site and App or any portion of them at any time, and any such use shall be discontinued immediately upon notice from us.
  4. The rights granted to you constitute a license and not a transfer of title.

The rights specified above to view, use and download Our Content and Restaurant Content available on this Site and App are not applicable to the design or layout of this Site and the App. Elements of this Site and the App are protected by trade dress and other laws and may not be copied or imitated in whole or in part.

5. TRADEMARK INFORMATION

The trademarks, logos, and service marks, including the “foodLuck” trademark, (the “Marks”) displayed on this Site and the App are the property of the Company or other third parties. You are not permitted to use the Marks without the prior written consent of the Company or such third party that may own the Marks.

6. PAYMENTS

You understand and agree that by placing an order with a restaurant through the Site or App, the particular restaurant will charge your provided credit card for the amount of the order and we will charge your credit card for the delivery charge. By placing an order you expressly authorize us and our partners (including restaurants) to charge your credit card in accordance with your order and in accordance with this Agreement and any other applicable policies on our Site or on the App. 

7. MANAGING USER CONDUCT

We reserve the right but do not have the obligation to: (a) monitor the Site and App for violations of these Terms of Use; (b) take appropriate legal action against anyone who, in our sole discretion, violates these Terms of Use; (c) terminate and delete Accounts (including information stored in connection with accounts) without liability to you; and (d) to otherwise manage the Site and App in a manner designed to protect the rights and property of Company and others and to facilitate the proper functioning of the Site and App.

8. WARRANTIES AND DISCLAIMERS

EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN A WRITTEN AGREEMENT BETWEEN YOU AND US, THIS SITE, AND ALL MATERIALS AND SERVICES ACCESSIBLE THROUGH THIS SITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS; (II) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (IV) THE QUALITY OF ANY SERVICES OR MATERIALS OBTAINED OR ACCESSIBLE BY YOU THROUGH THE SITE OR SOFTWARE APPLICATIONS WILL MEET YOUR EXPECTATIONS; AND (V) ANY ERRORS IN THE SERVICES OR MATERIALS OBTAINED THROUGH THE SITE OR APP, OR ANY DEFECTS IN THE SITE OR APP, ITS SERVICES OR MATERIALS, WILL BE CORRECTED.

WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT COMPANY IS NOT AN AGENT OF ANY OF THE RESTAURANTS FEATURED ON THE SITE OR APP AND MAKES NO REPRESENTATIONS WHATSOEVER ABOUT SUCH RESTAURANTS’ FOOD OR SERVICE. YOU UNDERSTAND AND AGREE THAT THE COMPANY MERELY OFFERS A DELIVERY PLATFORM TO ENABLE YOU TO OBTAIN DELIVERY SERVICES FROM LOCAL RESTAURANTS. BECAUSE THE SERVICES RELY ON THIRD PARTIES FOR THE DELIVERY SERVICES, COMPANY MAKES NO REPRESENTATIONS AND EXPRESSLY DISCLAIMS ANY WARRANTIES WITH RESPECT TO THE TIMING OF THE DELIVERIES.   

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

9. PERSONAL INFORMATION AND PRIVACY

You understand and agree that we may disclose information about you if we have a good faith belief that we are required to do so by law or legal process, to respond to claims, or to protect the rights, property, or safety of Company or others. Please refer to our Privacy Policy for more information about the manner in which we protect and use your information. 

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL COMPANY OR ITS OFFICERS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR UNDER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SITE AND ANY OF THE MATERIALS OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

WITHOUT LIMITING THE FOREGOING, COMPANY SHALL HAVE NO LIABILITY TO YOU FOR THE QUALITY OF FOOD/DRINK DELIVERED THROUGH USE OF THE SITE/APP OR FOR ANY PERSONAL INJURY RESULTING FROM POOR FOOD QUALITY, ALLERGIES OR ANY OTHER FEATURE OR INGREDIENT OF FOOD/DRINK OBTAINED THROUGH THE DELIVERY SERVICES PROVIDED BY THE SITE/APP. YOU UNDERSTAND THAT THE COMPANY MERELY OFFERS A DELIVERY PLATFORM AND THAT IT TAKES NO RESPONSIBILITY WHATSOEVER WITH RESPECT TO FOOD ORDERED THROUGH THE SITE/APP. YOU FURTHER UNDERSTAND AND AGREE THAT FOOD/DRINK ORDERED THROUGH THE SITE/APP IS DELIVERED TO YOU BY THIRD PARTY INDEPENDENT CONTRACTORS. WE DO NOT HAVE LEGAL CONTROL OVER THESE INDIVIDUALS AND THEY ARE NOT OUR EMPLOYEES. WHEN YOU PLACE AN ORDER FOR DELIVERY, THE DELIVERY PERSON/DRIVER BECOMES YOUR AGENT IN PICKING UP THE FOOD/DRINK AND DELIVERING TO YOU; WE ARE NOT A PART OF THAT TRANSACTION OTHER THAN FACILITATING THE INTERACTION BETWEEN THE PARTIES. ACCORDINGLY YOU AGREE THAT COMPANY WILL NOT BE LIABLE TO YOU FOR ANY ACTION OR OMISSION BY A DELIVERY PERSON/DRIVER, INCLUDING PHYSICAL INJURY CAUSED BY ANY SUCH INDEPENDENT CONTRACTOR. 

11. INDEMNITY AND LIABILITY

You agree to indemnify and hold Company, and its subsidiaries, affiliates, officers, directors, agents, partners and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of content you submit, post to, or transmit through the Site or our App, your use of the Site or our applications, torts or damaged (whether physical or otherwise) caused by you, your connection to the Site or our applications, your violation of these Terms of Use or any end user license agreement or your violation of any rights of another person or entity. 

12. GOVERNING LAW, JURISDICTION

This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. You agree that any dispute, claim or controversy arising out of or relating to your use of the Site or Services, these Terms or the breach, termination, enforcement, interpretation or validity thereof (collectively, “Disputes”) will be settled by binding arbitration between you and Company, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. This “Dispute Resolution” section will survive any termination of these Terms.

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules (the “AAA Rules”) then in effect. The Federal Arbitration Act will govern the interpretation and enforcement of this Section. The arbitration proceedings shall take place in San Diego County, California

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

13. GENERAL

The Terms of Use and the other rules, guidelines, licenses and disclaimers posted on the Site constitute the entire agreement between Company and you with respect to your use of the Site. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Terms of Use shall continue in full force and effect. Any failure by us to enforce or exercise any provision of these Terms of Use or related right shall not constitute a waiver of that right or provision.