PLEASE READ THESE TERMS AND CONDITIONS CAREFULLYBEFORE USING THE FORKSPOT PLATFORM. THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND FORKSPOT.
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. THIS AGREEMENT REQUIRES DISPUTES BETWEEN US BE SUBMITTED TO BINDING AND FINAL INDIVIDUAL ARBITRATION.YOUARE ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY REPRESENTATIVE ACTION. YOUWAIVEYOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Forkspot, Inc. a Delaware Corporation (“Forkspot” or “we”, “our” or “us”) operates the Forkspot Platform, including our website, mobile app, and social media pages (each of the foregoing, and all content, features, and materials thereon are collectively referred to as the “Forkspot Platform”). Forkspot provides an online marketplace with set or variable discounts enabling customers to place pickup or dine-in orders with participating restaurants(“Participating Restaurants”). viaForkspot’s website or mobile application referred to as the (“Forkspot Platform”).
The personal information You provide via the Platform will be collected and used in accordance with our Privacy Statement, which is incorporated in this Agreement by this reference.
By agreeing to this Agreement, You represent and warrant to us: (a) that You are at least eighteen (18) years old and have capacity to enter into this Agreement;(b) that You have not previously been suspended or removed from the Forkspot Platform; (c) You have the right, power and ability to enter into and perform under this Agreement; (d)You will not use the Forkspot Platform, directly or indirectly for any fraudulent undertakings in any manner; and (e)Youruse of the Forkspot Platform will be in compliance with this Agreement. If You are usingthe Forkspot Platform on behalf of an entity, organization or company, You represent and warrant that You haveauthority to bind the organization to this Agreement andon behalf of that organizationYou agree to be bound by this Agreement.
We reserve the right to deny access to the Forkspot Platform, or any service provided via the Forkspot Platform, to anyone who, in our subjective opinion violates this Agreement, interferes with the ability of others to enjoy the Forkspot Platform, or infringes the rights of others.
The use of the Forkspot Platform is available to You free of charge. Forkspot reserves the right to introduce a fee for the use of the Forkspot Platform. If Forkspot decides to introduce such a fee, Forkspot will provide notice at least 30 days in advance of the effective date and allow You to either continue or terminate Your Account.
MODIFICATION OF TERMS
We may amend this Agreement, at any time by posting the revised version on the Forkspot Platform(a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will notapply retroactively. Your continued use of theForkspot Platform after the posting of a Revised Version constitutes Youracceptance of such Revised Version. Any disputethat arose before the changeswill be governed by the Agreement in place when the dispute arose. If You do not agree with the modifications, You must immediately discontinue use of the Forkspot Platform.
ADDITIONAL TERMS AND CONDITIONS FOR CERTAIN CONTENT OR FUNCTIONALITY
In order to participate in certain services on the Forkspot Platform (e.g., if You make a purchase or enter a contest), You may be notified that You are required to agree to additional terms and conditions. Such additional terms are hereby incorporated into this Agreement by this reference but such additional terms shall control solely for the applicable service.
You (a) consent to receive communications from Forkspot in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Forkspot provides to You electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
You consent to accept and receive communications from us via the Forkspot Platform, e-mail, text message, phone call, and pushnotifications to the cellular telephone number You provide to us. These communications may be generated byautomatic telephone dialing systems, which will deliver prerecorded messages, including for the purposes ofsecondary authentication, reminders, and other notifications. Standard message and data rates may apply. You may opt-out of receivingcommunications by following the unsubscribe options we provide to You. You may also opt-out of textmessages from Forkspotat any time by reply text saying“STOP”. Youacknowledge that opting out of receiving communications may impact Your use of the Forkspot Platform.
Where Forkspot requires that You provide an e-mail address, You are responsible for providing Forkspot with a current, valid e-mail address. In the event that the last e-mail address You provided to Forkspot is not valid, or for any reason is not capable of delivering to You any notices required or permitted by this Agreement, Forkspot’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Forkspot at the following e-mail address: [email protected]. Such notice shall be deemed given on the next business day after such e-mail is actually received by Forkspot.
With the exception of User Content (as defined below), all materials contained on the Forkspot Platform, including all content, and the software, graphics, text and look and feel of the Forkspot Platform, and all trademarks, copyrights, patents and other intellectual property rights related thereto (“Proprietary Materials”), are owned or controlled by Forkspot, our third party licensors, advertising partners or the Participating Restaurants. You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any Proprietary Materials, or any other protectable aspects of the Forkspot Platform, in whole or in part, unless specifically stated otherwise. Subject to Your compliance with this Agreement, we grant You a non-exclusive, non-transferable, revocable limited license, subject to the limitations herein, to access and use the and Proprietary Materials for Your own non-commercial entertainment purposes consistent with the intended purpose of the Forkspot Platform. You agree not to use the Forkspot Platform for any other purpose.
Forkspot may provide You with interactive opportunities through the Forkspot Platformsuch as, without limitation, the ability to post comments, ratings, reviews, photos and other media (collectively, “User Content”). You represent and warrant that You are the owner of, or otherwise have the right to provide, all User Content that You submit through the Forkspot Platform. You hereby grant Forkspot a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicenseable right and license to use, copy, display, publish, modify, remove, publicly perform, display, translate, create derivative works, distribute and/or otherwise exploit Your User Content, in whole or in part, in connection with Forkspot’s business, including, without limitation, in advertising/promotional materials or merchandise, and in all forms now known or hereafter invented, without notification to and/or approval by You. You further grant Forkspot a license to use Yourusername and/or other user profile information, including without limitation Your ratings history, to attribute User Content to You in connection with permitted exploitation, without notification or approval by You.
You agree that the foregoing license is royalty-free and that You will not receive any compensation based on exploitation of YourUser Content even if we ourselves earn money as a result thereof (e.g., through advertising or sale of merchandise).
You also grant each user of the Forkspot Platform a non-exclusive license to access Your User Content through the Forkspot Platform, and to use, reproduce, distribute, display and perform Your User Content as permitted through the functionality of the Forkspot Platform and under this Agreement.
The above licenses granted by You in Your User Content are perpetual and will only terminate if You’ve requested the removal or deletion of Your User Content from the Forkspot Platform (such license will terminate within a commercially reasonable time after Your request to remove or delete Your User Content). You understand and agree, however, that we may retain, but not display, distribute, or perform, server copies of Your User Content that have been removed or deleted.
Subject to these grants, You retain any and all rights which may exist in Your User Content.We are not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of Your User Content if You desire.
You are prohibited from posting on or transmitting through the Forkspot Platform any User Content that infringes upon a third party’s intellectual property rights or is defamatory, damaging, illegal, or offensive.
Without limiting the foregoing, You may not post, upload, distribute, modify, or reproduce on the Forkspot Platform any copyrighted material, trademarks, or proprietary information belonging to others unless You have first obtained the prior written consent of the owner of such rights.
INTEGRITY OF RATINGS AND REVIEWS
Forkspot expressly disclaims liability for all User Content, and for any claims for economic loss resulting from such User Content. We strive to maintain a high level of integrity with respect to ratings and reviews posted or otherwise made available through the Forkspot Platform. Accordingly, You agree that: (a) You will base any rating or review on first-hand experience with the Forkspot Platform Restaurant; (b) You will not provide a rating or review for any Forkspot Platform Restaurant for which You have an ownership interest, employment relationship or other affiliation or for which You have such a relationship with any of that restaurant’s competitors; (c) You will not submit a rating or review in exchange for payment, free food items, or other benefits from a Forkspot Platform Restaurant; and (d) Your review will comply with the terms of this Agreement. Your further agree that Your reviews will not be plagiarized, contain advertisements or spam, contain personally identifying information about any person, contain personal attacks, or contain unrelated personal grievances. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
MONITORING, SUSPENSION, AND TERMINATION
We reserve the right (but have no obligation) to review any User Content (including any image files or reviews), investigate, and/or take appropriate action against You in our sole discretion (including removing or modifying Your User Content, and/or reporting You to law enforcement authorities) if we, in our sole discretion, suspect that You have violated any provision of this Agreement or could subject us or any other person to liability, including without limitation, criminal or civil liability.
REPRESENTATIVES AND WARRANTIES
You represent and warrant that You own or have the necessary rights, consents, and permissions to use and authorize us to use all proprietary rights in and to any and all of Your User Content and to enable inclusion and use of Your User Content in the manner contemplated by the Forkspot Platform and this Agreement. You further represent and warrant thatYour User Content will not defame any third party and that the use of Your User Content on the Forkspot Platform will not violate or infringe upon the intellectual property rights, or the rights of privacy or publicity, of any third party.
If You provide any feedback or suggestions regarding the Forkspot Platform or business (“Feedback”), Youhereby assign to Forkspot all rights in the Feedback and agree that Forkspot shall have the right to use such Feedback and related information in any manner it deems appropriate. Forkspot will treat any Feedback You provide to Forkspot as non-confidential and non-proprietary. You agree that You will not submit to Forkspot any information or ideas that You consider to be confidential or proprietary.
CONTENT POSTED BY OTHER USERS
We retain the right to filter or reject User Content and other content posted by third parties, however we have no obligation to investigate whether any User Content violates any term of this Agreement.
Just as You retain complete ownership of Your User Content (subject to the license to us granted above), all other users of the Forkspot Platform retain ownership of their User Content. You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit theUser Content of another user, in whole or in part.
Youagree to use the Forkspot Platform only for lawful purposes.You will not use the Forkspot Platform to cause nuisance, annoyance or inconvenience. You will not use the Forkspot Platform, or any content accessible through the Forkspot Platform, for any commercial purpose. You will not use the Forkspot Platform in any way that could damage, disable, overburden or impair any Forkspot server, or the networks connected to any Forkspot server. You will not copy any content displayed through the Forkspot Platform, including but not limited to Participating Restaurants’ menu content and reviews, for republication in any format or media. You will not conduct any systematic retrieval of data or other content from the Forkspot Platform. You will not try to harm other users of the Forkspot Platform in any way whatsoever. You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that You uncover in Your use of the Forkspot Platform.
You will not attempt to impersonate another user or person; solicit personal information from another user; collect, harvest, solicit or post passwords or personally identifiable information from other users; using the account, username, or password of another account holder or discloseYour password to athird party or permit athird party to access Your Account; use any information obtained from the Forkspot Platform in order to harass, abuse, or harm another person, or use the Forkspot Platform for a commercial purpose.
In order to access certain features of the Forkspot Platform, You will be required to register for a user account (an “Account”). To create an Account, Youwill berequired to provide certain personal information, such as Your e-mail address, Your name, billing/delivery address and credit card information. This information will be held and used in accordance with our Privacy Statement.
You warrant that the information You provide to Forkspot is accurate and that You will keep Your Account information current by making updates as needed viaForkspot Platform. Forkspot is entitled at all times to verify the information that You have provided and to refuse use of the Forkspot Platform without providing reasons.
You may only access the Forkspot Platform using authorized means. It is Your responsibility to check to ensure You download the correct application for Your device. Forkspot is not liable if You do not have a compatible mobile device or if You download the wrong version of the Forkspot Platform for Your mobile device.
You may never use another’s Account without permission or permit another to use Your Account. You may not create more than one Account. You are prohibited from registering a new Account if You have previously had an Account terminated.
You are responsible for keeping confidential Your Accountpassword, and restricting access to YourAccount via Yourcomputer or mobile device. You agree to accept full responsibility for all activities that occur within Your Account.
You agree to notify Forkspot immediatelyshould You suspect that any unauthorized party may be using Your password or Account.
Although we will not be liable for Your losses caused by any unauthorized use of Your Account, whether with or without Your knowledge, You may be liable for our losses or the losses of Participating Restaurantsdue to such unauthorized use.
Without limiting anything in this Agreement, we reserve the right, in our sole discretion, to restrict, suspend, or terminate Your Account and/or Your access to all or any part of the Forkspot Platform at any time, for any or no reason, with or without prior notice, and without liability, including in the event we stop offering any aspect of the Forkspot Platform. We expressly reserve the right to restrict, suspend and/or terminate Your access to any part of the Forkspot Platform if we determine, in our sole discretion, that You have violated any of the terms of this Agreement.
You may cancel yourForkspot account at any time for any reason after giving Forkspot at least 7 days prior written notice. Any fees paid by You prior to Your termination are nonrefundable. Termination of Your Account will not relieve You of any obligation to payany accrued fees or charges.
On behalf of the applicable Forkspot Platform Restaurant,Forkspot will charge You for Yourfood orders placed through the Forkspot ordering/pre-ordering system. You agree that You will pay for Your orders from Participating Restaurants, and that Forkspot may charge thepayment methodassociated with Your Account. Paymentsare non-refundable.
Forkspot uses a third-party payment processor (the "Payment Processor") to charge the payment method associated with Your Account. The processing of payments or credits, as applicable, in connection with Your use of the Forkspot Platform will be subject to the terms, conditions and privacy policies of thePayment Processor and the issuer of Your payment method in addition to this Agreement. Forkspot is not responsible for errors by the Payment Processor.
We may seek preauthorizationof Yourpayment method prior to a purchase to verify that the payment method is valid and/or has the necessary funds or credit available to cover Yourpurchase. These pre-authorizations will reduce Your available balance by the authorization amount until it isreleased or reconciled with the actual charge. Please contact Yourpayment method issuer if You have additional questionsregarding when an authorization amount will be removed from Your statement.
The Forkspot Platform may prompt You to establish an account with a third party payment service provider not owned or operated by us. Your agreement and understanding with any such payment service provider is solely between You and such payment service provider. We will not be a party to or in any way be responsible for Your agreement with suchpayment service provider. Any disputes You may encounter with such third party service provider shall be settled solely between You and the service provider.
The Forkspot Platform may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as required by applicable law, Forkspot is not responsible for any delays, delivery failures, or other economic damage resulting from such problems.
The Forkspot Platform may contain links or otherwise direct You to websites operated by third parties. We do not monitor or control the linked sites and make no representations regarding, and are not liable or responsible for the accuracy, completeness, timeliness, reliability or availability of, any of the content uploaded, displayed, or distributed, or products, or services available at these sites. If You choose to access any third party site, You do so at Your own risk. The presence of a link to a third party site does not constitute or imply our endorsement, sponsorship, or recommendation of the third party or of the content, products, or services contained on, or available through, the third party site.
We reserve the right to disable links from or to third party sites.
DISCLAIMERS AND LIMITATION OF LIABILITY
THE FORKSPOT PLATFORM AND ALL PRODUCTS AND SERVICES OFFERED VIA THE FORKSPOT PLATFORMARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, FORKSPOT MAKES NOREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (A) AS TO THE OPERATION OF THE FORKSPOT PLATFORM, OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED THEREON; (B) THAT USE OF THE FORKSPOT PLATFORM WILL BE 100% SECURE, UNINTERRUPTED OR ERROR-FREE; (C) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION, CONTENT, OR SERVICE, PROVIDED THROUGH THE FORKSPOT PLATFORM; OR (D) THAT THE SERVERS, OR EMAILS SENT FROM OR ON BEHALF OF FORKSPOT, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
FORKSPOT EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTIONS AND OMISSIONS OF THIRD PARTIES (INCLUDING WITHOUT LIMITATION, THE RESTAURANTS AND OTHER THIRD PARTY SERVICES ACCESSIBLE VIA THE PLATFORM), ITS USERS ANDTHE CONTENTS OF ANY USER CONTENT.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FORKSPOT PLATFORM IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
FORKSPOTIS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF THE FORKSPOT PLATFORM OR THE PURCHASE OF ANY PRODUCT THEREFROM, EVEN IF FORKSPOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL FORKSPOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID FORKSPOT IN THE THIRTY (30) DAY PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM AND IF YOU HAVE NOT PAID ANY AMOUNTS DURING THAT TIME PERIOD, YOU ACKNOWLEDGE THAT YOUR SOLE REMEDY SHALL BE TO CEASE USING THE FORKSPOT PLATFORM AND TERMINATE YOUR ACCOUNT.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Youhereby agree to indemnify and hold Forkspot harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of:Your use of the Forkspot Platform in violation of this Agreement; any breach of Your representations and warranties set forth in this Agreement;Your User Content; Your violation of any applicable law or regulation, whether or not referenced herein; Your violation of any rights of any third party, including Participating Restaurants; and/or Your misuse of the Forkspot Platform.
MEAL STANDARDS AND SAFETY
You agree to prepare all hot Meals at no less than 140°F and all cold Meals at less than 41°F (“Safe Temperature Range”). You must determine all quality, portion, size, ingredient or other safety related criteria that apply to the Meals (“Criteria”) and you accept sole responsibility for ensuring that your Meals meet such safety criteria. In the event you fail to prepare Meals within the Safe Temperature Range or if any Meals are inconsistent with the Criteria (each, a “Substandard Meal”), we do not have to make these Substandard Meals available for your sale via the Forkspot Platform. Costs of all Substandard Meals are your responsibility, including refunds and Substandard Meal retrieval costs. We will provide you reasonable advice regarding demand prediction in connection with Marketplace, which you may use at your discretion in connection with your determination of the quantity and type of Meals you choose to make available via the Forkspot Platform. You are subject to maintain title to all Meals until each Meal is picked up by your customers.
You hereby release and forever discharge Forkspot from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, Forkspot, the Forkspot Platform, and any Forkspot Platform Restaurant.
You acknowledge that that the seller of any food or alcoholic and non-alcoholic beverage is the applicable Forkspot Platform Restaurant and, as between Forkspot and the Participating Restaurants, the Participating Restaurants are solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the preparing, sale of, marketing, and packaging all products ordered through Forkspot, and updating their menu and menu prices. As between Forkspot and the Participating Restaurants, the applicable Forkspot Platform Restaurant is solely liable for the quality, safety, and freshness of its products, and Forkspot does not verify the credentials, representations, products, services or prices offered by the Participating Restaurants, and does not guarantee the quality of the product or services, or that any Forkspot Platform Restaurant or Forkspot Platform Restaurant product service complies with applicable laws. Forkspot will not be liable or responsible for any products or services provided by Participating Restaurants that are a cause of injury or that are unacceptable to or do not meet Your expectations in any manner.
You waive, and release Forkspot and its officers,directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to anyact or omission of a Forkspot Platform Restaurant in connection with the goods provided in connection therewith and/or as itrelates to compliance with applicable laws.In connection with the foregoing release, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY SIMILARPROVISION IN ANY OTHER JURISDICTION) WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THECREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BYHIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
OUR ALCOHOLIC BEVERAGES POLICY
Some jurisdictions permit the ordering of alcoholic beverages via internet or platforms such as Forkspot. In such jurisdictions, if you place an order that includes any alcoholic beverage, you acknowledge that you are at least 21 years of age. Upon pickup or consumption, as applicable, you shall present a government-issued driver license or ID card, which can be used to evidence your age. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you shall forfeit the cost of such beverages.
ADDITIONAL ENTITIES AND PERSONS PROTECTED
FOR PURPOSES OF THE SECTIONS ENTITLED “DISCLAIMERS AND LIMITATION OF LIABILITY”, “INDEMNIFICATION”, AND “RELEASE”, REFERENCES TO FORKSPOT INCLUDE FORKSPOT AND ITS AGENTS, AFFILIATES, PARTNERS, LICENSORS, CONSULTANTS, SERVICE PROVIDERS, SUCCESSORS AND ASSIGS AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS.
TAKE DOWN PROCESS FOR INFRINGING CONTENT
If You believe that any content, including User Content or other materials, posted on the Forkspot Platform constitute an infringement of Your copyrights, we will respond promptly to any properly submitted notice containing the information detailed below. Written notifications of claimed copyright infringement should be sent to our legal department at the following contact information: [email protected]
To be effective, the notification must be a written communication that includes the following:
- A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
This Agreement and any dispute will be governed by California law and/or applicable federal law (including theFederal Arbitration Act) as applied to agreements entered into and to be performed entirely within California,without regard to its choice of law or conflicts of law principles.
ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. Except for disputes brought in small claims court, all disputes between You and Forkspot arising out of, relating to or in connection with the Forkspot Platform or this Agreement shall be exclusively settled through binding arbitration pursuant to the then-current Comprehensive Arbitration Rules and Procedures of JAMS (the “JAMS Rules”) before a single neutral arbitrator working under the auspices of JAMS. The arbitration shall be held in Los Angeles, California. There is no judge or jury in arbitration. YOU AND FORKSPOT AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in these terms to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither You nor we are entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in these terms to the contrary, we agree that if Forkspot makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) that You had already provided notice of to Forkspot. If the arbitration in this section provision is found unenforceable or to not apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in Los Angeles County, California. You hereby accept the exclusive jurisdiction of such court for this purpose. This Agreement is governed by the laws of the State of California without regard to conflict of law provisions.
This Agreement is deemed accepted upon any use of any of the Forkspot Platform. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.This Agreement is a complete statement of the agreementbetween You and Forkspot regarding the Forkspot Platform. In the event of a conflict between this Agreement and any otherForkspot agreement, this Agreement will prevail and control the subject matter of such conflict. If any part of this Agreement or Additional Terms is held invalid orunenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearlyas possible, the original intentions of the parties, and the remaining portions will remain in full force andeffect. You agree that, except as otherwise expressly provided in this Agreement, therewill be no third-party beneficiaries to this Agreement.
NO SUPPORT OR MAINTENANCE
You acknowledge and agree that Forkspot will have no obligation to provide You with any support or maintenance in connection with the Forkspot Platform.Nonetheless, we will make a commercially reasonableattempt to help You with any queries or problems that You may have with the Forkspot Platform or any of Your purchases through the Forkspot Platform. To reach our customer support team, please e-mail us at [email protected] It will expedite Your request for assistance by providing our representatives with all the information they need to solve Your problem as quickly as possible.
ADDITIONAL TERMS FOR FORKSPOT PARTICIPATING RESTAURANTS
In addition to all of the above terms applicable to all Forkspot users, the following terms are applicable to all restaurants that wish to participate in the Forkspot Restaurant Program.
- How to Participate.
- To activate Your Restaurant Account, You must provide Forkspot with valid ACH information for Forkspot to pay You for the take-out and dine-in meals You will provide to Forkspot Users who make purchases via the Forkspot Platform. You allow Forkspot to pay any amounts due to You via ACH payment. Activation also requires You to provide a valid email address (the “Restaurant Account Registered Email Address”) and a valid credit card for Forkspot to charge You for certain services, as detailed below, and as offered from time to time as optional add-ons, such as participation in a marketing program. You agree to update Your Restaurant Account Registered Email Address, ACH and credit card information via Your Restaurant Account Control Panel as needed to keep it current at all times.
- You agree to promptly provide Forkspot with all Your menus currently in use (including lunch, dinner, specials, etc.). You may not change these menus or prices without approval by Forkspot. Forkspot will update the menus and menu pricing when approved. Until Forkspot makes these changes on the Forkspot Platforms, You must honor the menu and Published Menu Prices (as defined below) in Your active Forkspot menus.
- How It Works.
- You agree to accept payment for Forkspot Users’ take-out and dine-in meals directly from Forkspot, without providing a bill to or accepting any payment from Forkspot Users.
- Whena Forkspot User gets take-out or dines-in at Your registered restaurant, Forkspot will deposit in Your account, within the Deposit Time Period, the Deposit Amount. The “Deposit Amount” for an order is an amount equal to the Published Menu Prices for the items ordered, plus any tip the Forkspot User wishes to provide (in his/her sole discretion) and taxes, less the sum of the following: the Variable Discount, the Forkspot Commission, and the Processing Fee.
- A “Forkspot User” is a customer who has registered on the Forkspot Platform
- “Forkspot Platforms” means the official Forkspot website located at http://www.forkspot.com and the Forkspot mobile application for iOS and Android operating systems.
- The “Forkspot Commission” means the “x” rate specified in your “Merchant sign-up sheet” (the “Forkspot Rate”). Forkspot ’s Commission is equal to __x__% of the pre-tax and pre-discount/variable discount (in effect at the time of the order)subtotal for each order; provided that in no event can the Forkspot Commission be less than zero. Forkspot can change the Forkspot Rate at any time by written notice (via email or via the Forkspot Platform) at least 30 days in advance of the effective date of the new Forkspot Rate.
- The “Variable Discount” means the amount that the Forkspot User’s order total, based on the Restaurant’s Published Menu Prices, is discounted to arrive at the “Forkspot Order Price”. You set the Variable Discount via Your Restaurant Account Control Panel located at http://biz.forkspot.com; provided that the Variable Discount must be at least 5% and all variations must be in increments of 5%.
- The Participating Restaurant’s “Published Menu Prices” means the prices listed in the menu that appears on Forkspot Platforms. You provide Forkspot with the Published Menu Prices as part of the initial registration process. The Published Menu Prices must be the lowest prices You offer to customers at the Participating Restaurant. You can change the Published Menu Prices by contacting Forkspot and justifying the change, and providing Your updated menu to Forkspot via email ([email protected])or fax (855-246-3110) (or as otherwise directed by Forkspot).
- The “Deposit Time Period” means approximately one week from the transaction date. Forkspot may offer expedited processing and a reduced Deposit Time Period in exchange for an additional fee.
- The “Processing Fee” means merchant processing fees that are charged by applicable third party credit card processing companies to process user credit card payments and ACH transfers.
- Pay Per Walk-In. You agree and you understand that You will pay Forkspot a “Pay Per Walk-In Fee” for Forkspot Users who visitYour location.Forkspot “Pay Per Walk-In is an advertsing model which does not guarantee a purchase by the customer. The Pay Per Walk-In Fee is fifty cents ($0.50) per successfully generated and viewed coupon when Forkspot users visit the Participating Restaurant. Forkspot will charge the Pay Per Walk-In Fee to Your credit card on file approximately once a week, however if the total of the Participating Restaurant’s Pay Per Walk-In Fees is less than $5, then Forkspot will add that week’s Pay Per Walk-In Fees to the following week and will charge the Pay Per Walk-In Fee when it is at least $5. Records regarding the Pay Per Walk-In Fees will be available in Your Restaurant Account Control Panel. Forkspot can change the Pay Per Walk-In Fee at any time by written notice (via email or via the Forkspot Platform) at least 30 days in advance of the effective date of the new fee.
- Forkspot Equipment. Forkspot will provide Participating Restaurants with the following equipment: (a) a Tablet with Bluetooth Device(s) (the “Forkspot Tablet”) and (b) a beacon, which may be a separate device or may be within the Forkspot Tablet (collectively, the “Forkspot Equipment”). Forkspot will mail the Forkspot Equipment to the Participating Restaurant. You agree that Devices(s) will at all times remain our property, and upon expiration or termination of the Agreement, or your extended absence from the Forkspot Platform for longer than forty-five (45) days, you will return all Device(s) to us within seven (7) days.
- Order Process.
- When Forkspot Users order from a Participating Restaurant via the Forkspot Platform, the order will be sent to the Forkspot Tablet associated with Your Restaurant Account. You will receive a notification via the Forkspot Tablet that a new order has been placed.You must respond to the notification by accepting or rejecting the order as quickly as possible. If You reject an order, You must provide a reason. Forkspot will use this information to notify users about rejection of their order.
- Accepted pickup or dine-in orders must be ready for pickup or user dine-in within 30 minutes unless You have requested, and the Forkspot User has accepted, a delay. If You need extra time to prepare an order, You can request a delay of 10-60 minutes (in 10 minute increments) via the Forkspot Tablet. When You request a delay, the Forkspot User can accept the delay or cancel the order. If the Forkspot User cancels the order in response to a delay, You will not receive a Deposit Amount for the order. In order to incentivize Participating Restaurants not to delay orders, You will still be responsible fora (2.9% + $0.30)processing fee of the total refunded order amount.
- Customer Service.
- In an effort to provide the best user experience, Forkspot reserves the right to modify Forkspot User orders and to provide full or partial refunds to Forkspot Users for any reason at all times. Reasons for providing refunds include but are not limited to Forkspot User errors in placing or picking up orders, such as ordering by mistake or from the wrong restaurant, or arriving at the Participating Restaurant when the food is no longer hot, or failing to pick up an order. You acknowledge that this will impact the Deposit Amount and may result in no payment to You; however please note that because the Forkspot Commission is a calculated using the Forkspot Order Price, if there is no, or a reduced, payment to You, there is also no, or a reduced, payment to Forkspot (except as stated above).
- You agree to refer to Forkspot, any disputes between You and the Forkspot User and You further agree that Forkspot has the right to resolve disputes between the Participating Restaurant and the Forkspot User in its sole discretion. You agree to abide by Forkspot’s decisions regarding disputes.
- If You need to modify an order or feel that a Forkspot User deserves a refund, You must make a request via the Forkspot Tablet and provide an acceptable reason.
- User Reviews. The Forkspot Platform may offer Forkspot Users the opportunity to provide reviews of Participating Restaurants from which they have ordered. Forkspot will give Participating Restaurants the opportunity to respond to reviews. You hereby grant to Forkspot Users, the right to share their experiences, to use Your trademarks and trade names, and to take and share images or other recordings of the Participating Restaurant for inclusion in Forkspot User reviews, including the exterior, interior, food, and servers.
- Marketing Add-Ons. From time to time, Forkspot may make available to You various marketing packages. Marketing packages will be described and priced at the time they are offered. Marketing packages may include notifications to Forkspot Users running the Forkspot Mobile Application, encouraging them to place an order or dine-in at Your Restaurant when they are nearby, email marketing, banner advertising, pay-per-click advertising, and more.
- License to Forkspot. You grant Forkspot a non-exclusive right and license to use the name, trademarks, trade names, logos, interior and exterior photos of the Restaurant and photos of Your restaurant food and all other menu items, during the period You have a Restaurant Account and for a period of 30 days following termination by either party.
- Taxes. Forkspot uses third-party service providers such as TaxJar to determine the actual sales tax rates for orders placed through the Forkspot Platform. All sales tax rates are determined based on the locality and the zip code of Your restaurant. Sales Tax rates may change from time to time without notice, however Forkspot will always pay Participating Restaurants the all sales tax monies collected from Forkspot Users in applicable transactions. Forkspot will retrieve Your annual sales tax data from “Stripe” (or another applicable merchant processor) to prepare 1099K forms and perform required reporting. Forkspot will notify You about available 1099K forms by email and will allow You to download Your 1099K forms from Your Restaurant Account Control Panel for Yourtax reporting purposes. As a Participating Restaurant,You have sole responsibility for retrieving Your 1099K forms and paying Your sales taxes on time. Forkspot disclaims all responsibility for the tax reporting and payment required of You. In addition to your indemnification obligations above, you hereby agree to indemnify and hold Forkspot harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, due to or arising out of reporting and payment of your tax obligations.
- No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between You and Forkspot as a result of this Agreement or Your use of the Forkspot Platform.
- Forkspot can terminate this agreement and the relationship between Forkspot and You at any time, for any reason (or no reason). Termination by Forkspot is effective upon notice to Your Restaurant Account Registered Email Address.
- You can terminate this agreement and the relationship between You and Forkspot at any time, for any reason (or no reason) by providing 30 days’ prior written notice to Forkspot at the following email address: [email protected]
- Forkspot will disable ordering from the Forkspot Platforms as soon as practicable following termination. Forkspot will pay You Deposit Amounts due as of the time of termination and any Deposit Amounts due for Forkspot User Orders made and fulfilled during the period following termination but prior to disabling ordering, less (the “Termination Processing Period”).
- You must return the Forkspot Equipment within 7 business days following termination by either party. If Forkspot receives the Forkspot Equipment, in working order and good condition, within this time frame, then Forkspot will refund Your Equipment Security Deposit, if any. If Forkspot does not receive the Forkspot Equipment, in working order and good condition, during this time frame, then Forkspot will have the right to retain Your Equipment Security Deposit, if any, to charge You $250, and to pursue all other collection actions and remedies.
- You agree that Forkspot may deposit amounts due to You as of the time of termination and, if applicable, a refund of Your Equipment Security Deposit, in Your bank account within 30 business days following the later to occur of termination by either party or return of the Forkspot Equipment (collectively, the “Termination Administration Period”). You must keep Your bank account active throughout the Termination Administration Period. Forkspot has no responsibility to pay You and may retain for its benefit, any amounts it owes You but is unable to deposit during the Termination Administration Period if Your bank account is closed or becomes invalid or inactive during such period.
- Account Maintenance Fee. Although it is not in effect at this time, Forkspot may in the future charge an “Account Maintenance Fee” for participation in the Forkspot Restaurant Program. If so, Forkspot will provide notice to You via Your Restaurant Account Registered Email Address. If You don’t terminate Your participation in the Forkspot Restaurant Program within 30 days following notice of the institution of an Account Maintenance Fee by Forkspot, You agree to pay the Account Maintenance Fee and agree that Forkspot can charge Your credit card for such Account Maintenance Fee.
- Revisions to Terms. Forkspot may change this Agreement via email to Your Restaurant Account Registered Email Address and/or by notice posted on the Forkspot Platforms.
You agree that if the Forkspot Equipment is damaged, lost or otherwise not returned when You (or we) terminate Your Restaurant Account, we have the right to charge Your credit card on file an amount equal to $250. If we are not able to process this charge to Your credit card on file (for example, if Your credit card is declined or Your information is not current) then You will be responsible for the expenses Forkspot incurs in the collection process, including Forkspot’s associated legal fees. Forkspot reserves the right to charge a $250 Equipment Security Deposit, during registration of Your account or any subsequent time, if Forkspot determines (in its sole discretion) this is warranted. You also agree that Device(s) may only be used for the Forkspot Platform, and Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party.