WE OWN AND OPERATE THE PLATFORM, THROUGH WHICH USERS CAN PLACE TAKE-OUT ORDERS FOR DELIVERY BY INDEPENDENT COURIERS ("COURIERS") OR PICK UP BY THE USER OF FOOD AND BEVERAGES ("TAKE-OUT ORDERS") FROM PARTICIPATING RESTAURANTS ("RESTAURANTS") AS IDENTIFIED FROM TIME TO TIME ON THE PLATFORM (THE "SERVICE").
THESE TERMS APPLY TO ALL USERS OF THE PLATFORM ("USERS" OR "YOU"). WE MAY AMEND OR UPDATE THE TERMS FROM TIME TO TIME WITHOUT NOTICE TO YOU. ANY AND ALL SUCH MODIFICATIONS ARE EFFECTIVE IMMEDIATELY UPON POSTING AND APPLY TO ALL ACCESS TO AND CONTINUED USE OF THE PLATFORM. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THE TERMS FOR ANY REVISIONS OR UPDATES. BY USING THE PLATFORM, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AS AMENDED OR UPDATED FROM TIME TO TIME. THE INFORMATION AND MATERIAL ON THE PLATFORM MAY BE CHANGED, WITHDRAWN OR TERMINATED AT ANY TIME IN OUR SOLE DISCRETION WITHOUT NOTICE. WE WILL NOT BE LIABLE IF FOR ANY REASON ALL OR ANY PART OF THE PLATFORM IS RESTRICTED TO USERS OR UNAVAILABLE AT ANY TIME FOR ANY PERIOD. IF YOU DO NOT WISH TO ACCEPT AND BE BOUND BY THE TERMS, DO NOT USE THE PLATFORM.
WE DO NOT COMPLETE TAKE-OUT ORDERS FOR THE RESTAURANTS. WE ACT ONLY AS AN INTERMEDIARY BETWEEN YOU AND THE RESTAURANT. THE RESTAURANTS IDENTIFIED ON THE PLATFORM OPERATE INDEPENDENTLY FROM US AND HAVE ENTERED INTO AGREEMENTS WITH US TO MAKE FOOD AND BEVERAGES AVAILABLE TO YOU FOR DELIVERY OR PICK UP BY YOU THROUGH THE PLATFORM. WHILE THE RESTAURANTS ARE REQUIRED TO COMPLY WITH ALL APPLICABLE LAWS, RULES, REGULATIONS AND STANDARDS (COLLECTIVELY, THE "RULES") PERTAINING TO THE HANDLING, PREPARATION, SALE AND MARKETING OF THEIR PRODUCTS, WE DO NOT CONTROL AND ARE NOT RESPONSIBLE FOR FOOD PREPARATION OR FOOD SAFETY BY THE RESTAURANTS AND WE DO NOT VERIFY COMPLIANCE WITH THE RULES BY ANY RESTAURANT. WE ALSO DO NOT GUARANTEE THE QUALITY OF THE PRODUCTS OF ANY RESTAURANT AND DO NOT INDEPENDENTLY VERIFY ANY REPRESENTATIONS MADE BY ANY RESTAURANT REGARDING ITS PRODUCTS.
WE DO NOT DELIVER TAKE-OUT ORDERS TO YOU. WE ACT ONLY AS AN INTERMEDIARY BETWEEN YOU AND THE COURIERS. THE COURIERS OPERATE INDEPENDENTLY FROM US AND HAVE ENTERED INTO AGREEMENTS WITH US TO DELIVER TAKE-OUT ORDERS PLACED THROUGH THE PLATFORM TO YOU. WHILE THE COURIERS ARE REQUIRED TO COMPLY WITH ALL APPLICABLE 2
LAWS, RULES AND REGULATIONS PERTAINING TO THEIR SERVICES, WE DO NOT VERIFY COMPLIANCE WITH THE RULES BY ANY COURIER AND DO NOT GUARANTEE THE TIMELINESS OF THEIR SERVICES.
In order to use the Service, you must have a valid mobile phone number, be a registered User and have downloaded the Application to a personal mobile device. You are responsible for obtaining access to the Platform and acknowledge that such access may involve third-party fees (such as Internet service provider access, data fees or calling rates). You are required to ensure that all persons who access the Platform through a user's internet connection are aware of these Terms and comply with them. You are responsible for any security breaches or performance issues relating to accessing the Platform.
By accepting these Terms, you represent and warrant that you are legally capable of entering into a binding contract and are at least of the age of majority where you reside.
You may only use the Platform to place Take-out Orders if you are the authorized holder of the debit or credit card used for payment of the Take-out Order.
All activity that occurs on your account is your sole and exclusive responsibility and we will not be liable for any activity occurring on your account, including, without limitation, unauthorized activity by a third party.
4. PROCESSING TAKE-OUT ORDERS
Once you submit a Take-out Order using the Platform and your payment for the Take-out Order has been authorized (debit or credit card), your Take-out Order will be transmitted to the Restaurant from which you ordered. Once you have submitted your Take-out Order and your payment has been authorized, you WILL NOT be entitled to change your order. You are responsible to ensure that all the details of your Take-out Order (including your billing and delivery address) are complete and accurate.
Any notification sent to you by the Platform confirming your Take-out Order only means that the Take-out Order has been received and is being processed by us, and DOES NOT necessarily mean that your Take-out Order has been accepted by the Restaurant. We encourage all the Restaurants to accept all Take-out Orders and to communicate to us any rejection promptly. We will notify you as soon as reasonably possible if a Restaurant rejects your Take-out Order. Restaurants have the discretion to reject Take-out Orders at any time and for any reason.
5. REJECTION OF TAKE-OUT ORDERS
If your Take-out Order is subsequently rejected by the Restaurant or cancelled for any other reason, your bank or card issuer will not transfer the funds for the Take-out Order to us, but will instead release the relevant amount back into your available balance. This may take a period of time which is entirely dependent upon your bank or card issuer. You acknowledge and agree that neither Company nor the relevant Restaurant will be responsible or liable to you in relation to any by your bank or card issuer in the release of funds back into your account. 3
6. DELIVERY OF TAKE-OUT ORDERS
When you place a Take-out Order through the Platform for delivery to you, you may choose the time when you would like your Take-out Order to be delivered to you. This time is only an estimate and we make no guarantee that this time will be achieved. We are not responsible for any delays in receiving or having your Take-out Order ready for delivery for any reason. It is not our policy to provide a refund if you are dissatisfied with your Take-out Order. We may, in our sole discretion, provide a refund in certain circumstances, provided that the Restaurant also agrees to the refund.
7. PRICE AND PAYMENT
Prices will be as quoted on the Platform and will have applicable sales taxes and delivery charges calculated at checkout. You will be charged at the time of placing your Take-out Order. Payment for Take-out Orders will be transacted through our applicable third-party payment processor which, as at the date hereof, is TD Merchant Services. You consent to the collection and use of your information (including, if applicable, personal information) by such payment processing service as necessary to process your payment for Take-out Orders. We reserve the right to change, or to stop accepting, any permitted payment method at any time in our sole discretion. You agree that we may charge your payment card for any Take-out Order placed by you and for any additional amounts (including any taxes) as may be applicable in connection with your purchase. We will provide you with an online and/or emailed billing summary statement which you may review, save, or print at your discretion. This is the only billing statement that will be provided by us.
8. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
You understand and agree that the Platform and its entire contents, features, and functionality, including but not limited to all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement, are owned by Company, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.
The Company name and all related names, logos, product and service names, designs, images and slogans are trademarks of Company or its affiliates or licensors. You must not use such marks without the prior written permission of Company. Other names, logos, product and service names, designs, images and slogans mentioned or which appear on the Platform are the trademarks of their respective owners. Use of any such property, except as expressly authorized, shall constitute a violation of the rights of the property owner and may be a violation of federal or other laws and could subject the violator to legal action.
You may only use Platform for your personal and non-commercial use. You shall not directly or indirectly reproduce, compile for an internal database, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Platform, in any form or medium whatsoever except:
(a) your computer, browser and cellular telephone may temporarily store or cache copies of materials being accessed and viewed;
(b) a reasonable number of copies for personal use only may be printed keeping any proprietary notices thereon, which may only be used for non-commercial and lawful personal use and not for further reproduction, publication, or distribution of any kind on any medium whatsoever; and
(c) in the event social media features are provided with respect to certain content are on our Platform, you may take such actions as our Platform permits for such features. 4
Users are not permitted to modify copies of any materials from the Platform nor delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Platform. You must not access or use for any commercial purposes any part of the Platform or any services or materials available through the Platform.
If you print off, copy or download any part of our Platform in breach of these Terms, your right to use our Platform will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. You have no right, title, or interest in or to the Platform or to any content on the Platform, and all rights not expressly granted are reserved by Company. Any use of the Platform not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other intellectual property laws.
All information, data, text, software, music, sound, photographs, graphics, video, messages or other materials, whether publicly posted or privately transmitted to the Platform or through the Platform by Users ("User Content") are the sole responsibility of Users. Users are entirely responsible for User Content uploaded, posted, emailed, transmitted or otherwise made available by Users in using the Platform. We do not control or actively monitor User Content and do not guarantee the accuracy, integrity or quality of User Content. You acknowledge that by using the Platform, you may be exposed to materials that are offensive, indecent or objectionable. Under no circumstances will Company be liable in any way for any materials, including, but not limited to, for any errors or omissions in any materials or any defects or errors in any printing or manufacturing, or for any loss or damage of any kind incurred as a result of the viewing or use of any materials posted, emailed, transmitted or otherwise made available via the Platform.
10. RESTRICTIONS ON USER CONTENT AND USE OF THE PLATFORM
As a condition of your access and use you agree that you may use the Platform only for lawful purposes and in accordance with these Terms.
The following content standards apply to any and all content, material, and information a user submits, posts, publishes, displays, or transmits (collectively, "submit") to the Platform, to other users or other persons and any and all interactive functions. Any and all User Content must comply with all applicable federal, provincial, local, and international laws and regulations.
Without limiting the foregoing you warrant and agree that your use of Platform and any User Content
(a) copy any content unless expressly permitted to do so under these Terms;
(b) upload, post, email, transmit or otherwise make available any material that:
(i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable;
(ii) involves stalking, attempting to exploit any individual or harm minors in any way by exposing them to inappropriate content or otherwise nor ask for personal information;
(iii) asserts or implies that you have a right to make available under any law or under a contractual relationship;
(iv) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party 5
(including privacy rights);
(v) impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses, or screen names associated with any of the foregoing);
(v) is or contains unsolicited or unauthorized advertising, solicitations for business, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
(vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or that of any Users or that compromises a User’s privacy;
(vii) contains any falsehoods or misrepresentations or create an impression that you know is incorrect, misleading, or deceptive;
(viii)transmit, or procure the sending of, any advertisements or promotions, commercial activities or sales, including without limitation any "spam", "junk mail", "chain letter", contests, sweepstakes and other sales promotions, barter, or advertising or any other similar solicitation;
(ix) include engaging in any other conduct that restricts or inhibits anyone's use or enjoyment of the Platform, or which, as determined by us, may harm Company or users of the Platform or expose them to liability;
(x) include causing annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, or alarm any other person;
(xi) promote any illegal activity, or advocate, promote, or assist any unlawful act; or
(o) gives the impression that they originate from or are endorsed by us or any other person or entity, if this is not the case;
(c) impersonate any person or entity or misrepresent their affiliation with a person or entity;
(e) collect or store personal information about other Users;
(f) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform; or
(g) modify, translate, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform, except to the extent the foregoing restrictions are expressly prohibited by applicable law.
You are prohibited from attempting to circumvent and from violating the security of the Platform including without limitation: 6
(a) accessing content and data that is not intended for you;
(b) attempting to breach or breaching the security and/or authentication measures which are not authorized;
(c) restrict disrupt or disable service to users, hosts, servers or networks;
(d) illicitly reproducing TCP/IP packet header;
(e) disrupting network services and otherwise disrupting our ability to monitor the Platform;
(f) use any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
(g) introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
(h) attack the Platform via a denial-of-service attack, distributed denial-of-service attack, flooding, mailbombing or crashing; and
(i) otherwise attempt to interfere with the proper working of the Platform.
11. LICENSE OF USER CONTENT
By submitting, posting or displaying User Content on or through the Platform, you grant us and our affiliates and service providers, and each of their and our licensees, successors, and assigns the right to a world-wide, royalty free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose and according to your account settings and/or incorporate such material into any form, medium or technology throughout the world without compensation to you. You waive any moral rights or other rights of authorship as a condition of submitting any User Content. None of the User Content you submit to the Platform will be subject to any confidentiality by Company. We will not be responsible or liable for any use of User Content in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any User Content that you submit.
12. MONITORING AND ENFORCEMENT; SUSPENSION AND TERMINATION
Company has the right, without provision of notice to:
YOU WAIVE AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY AND ANY OF THE FOREGOING PARTIES RELATING TO ANY, INVESTIGATIONS BY EITHER COMPANY OR SUCH PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.
We have no obligation, nor any responsibility to any party to monitor the Platform or its use, and do not and cannot undertake to review material that you or other users submit to the Platform. We cannot ensure prompt removal of objectionable material after it has been posted and we have no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party.
13. NO RELIANCE
The content on our Platform is provided for general information purposes only. It is not intended to amount to advice on which you should rely. You must obtain more specific or professional advice before taking, or refraining from, any action or inaction on the basis of the content on our Platform.
Although we make reasonable efforts to update the information on our Platform, we make no representations, warranties or guarantees, whether express or implied, that the content on our Platform is accurate, complete or up to date. Your use of the Platform is at your own risk and Company has no responsibility or liability whatsoever for your use of this Platform.
The Platform may include content provided by third parties, including from other users and third-party licensors. All statements and/or opinions expressed in any such third party content, other than the content provided by Company, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect the opinion of Company. Company is not responsible, or liable to you or any third party, for the content or accuracy of any third party materials.
15. END USER LICENSE
Except for User Content, the Platform and the information and materials contained therein are the property of Company and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, and other intellectual property laws in accordance with Section 8 of these Terms. Subject to these Terms, we grant to you a non-transferable, non-exclusive, license to download, install and use one copy of the Application on a mobile device that you own or control for your use (the "License"). The Application and the Platform is licensed to you and not sold. Any future release, update, or other addition to functionality of the Application and the Platform will be subject to these Terms.
16. GEOGRAPHIC RESTRICTIONS
The owner of the Website and Application is based in the Province of Alberta in Canada. We provide this Platform for use only by persons located in Canada. The Platform is not intended for use in any jurisdiction 8
where its use is not permitted. If you access the Platform from outside Canada you do so at your own risk and you are responsible for compliance with local laws of your jurisdiction.
17. APPLE APP STORE AND GOOGLE PLAY STORE ADDITIONAL TERMS AND CONDITIONS
To the extent, the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to the use of Google Maps services and content, or to the Application from the Apple App Store or Google Play Store.
The following additional terms and conditions apply to you if you are using the Application from the Apple App Store or Google Play Store. You acknowledge and agree that:
(a) these Terms are between Company and you and not with Apple or Google, and we, not Apple or Google, are solely responsible for the Application and the content thereof. To the extent these Terms provide for usage rules for the Application that are less restrictive or in conflict with the Apple App Store Terms of Service or Google Play Store Terms of Service, the more restrictive or conflicting Apple or Google Terms of Service will take precedence and will apply;
(b) Apple and Google have no obligation whatsoever to provide any maintenance and support services with respect to the Application. We are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple or Google, and Apple or Google will refund the purchase price for the Application to you (if any) and to the maximum extent permitted by applicable law, Apple and Google will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility;
(c) we, not Apple and Google, are responsible for addressing any claims of you or any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation.; and/or (iv) intellectual property infringement claims; and
(d) Apple and Google, and their subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple and Google will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
You represent and warrant that (i) you are not located in a country that is subject to a Canada or U.S. Government embargo, or that has been designated by Canada or U.S. Government as a "terrorist supporting" country, and (ii) you are not listed on any Canada or U.S. Government list of prohibited or restricted parties.
You acknowledge and agree that the Platform may contain advertisements. If you elect to have any business dealings with anyone whose products or services may be advertised on the Platform, you acknowledge and agree that such dealings are solely between you and such advertiser and you further acknowledge and agree that we will not have any responsibility or liability for any losses or damages that 9
you may incur as a result of any such dealings.
19. LINKS AND THIRD-PARTY WEBSITES
The Platform (including User Content) may contain links to other websites that are not owned or controlled by us. In no event will any reference to any third party, or any third-party product or service be construed as an approval or endorsement by us of that third party, third party product or third-party service. We are also not responsible for the content of any linked websites. Any third-party websites or services are subject to the terms and conditions of those websites or services and you are responsible for determining those terms and conditions and complying with them. The presence of a link to any other website(s) does not imply that we endorse or accept any responsibility for the content or use of such website(s), and you hereby release us from all liability and/damages that may arise from your use of such website(s) or receipt of services from any such website(s).
20. DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
NEITHER COMPANY NOR ANY AFFILIATES NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SERVICE PROVIDERS MAKES ANY WARRANTY, REPRESENTATION OR ENDORSEMENT WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, SUITABILITY, ACCURACY, CURRENCY OR AVAILABILITY OF THE PLATFORM OR ITS CONTENTS. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ANY AFFILIATES NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SERVICE PROVIDERS REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT, OR ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
We cannot and do not guarantee or warrant that files or data available for downloading from the internet or the Platform will be free of viruses or other destructive code. You are solely and entirely responsible for your use of the Platform and your computer, internet and data security. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAILBOMBING OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE PLATFORM OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE PLATFORM OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE PLATFORM, AND WE WILL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY. WE WILL NOT BE 10
LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THE SERVICE. WE WILL NOT BE LIABLE FOR ANY ISSUES RELATED TO FOOD ORDERS OR DELIVERIES PROCESSED THROUGH THE PLATFORM.
21. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE PLATFORM, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE PLATFORM, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE PLATFORM, ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE PLATFORM, (V) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE PLATFORM OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE PLATFORM, (VI) STATEMENT OF CONDUCT, PRODUCT, OR ABILITY OF ANY THIRD-PARTY ON THE PLATFORM, OR (VII) ANY OTHER MATTER RELATING TO THE PLATFORM. THESE LIMITATIONS WILL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY CANADIAN DOLLARS ($50) OR (B) AMOUNTS YOU HAVE PAID US IN THE PRIOR 12 MONTHS (IF ANY). THE FOREGOING LIMITATIONS WILL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU AGREE TO INDEMNIFY AND HOLD COMPANY HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), INCURRED IN CONNECTION WITH ANY MATERIALS SUBMITTED, POSTED, TRANSMITTED OR MADE AVAILABLE BY YOU THROUGH THE PLATFORM, ANY INTERACTIONS OR TRANSACTIONS BETWEEN YOU AND ANY THIRD-PARTY RESTAURANT OR INDEPENDENT COURIER CONTRACTORS THAT PROVIDES SERVICES THROUGH OUR PLATFORM AND/OR ANY VIOLATION BY YOU OF THESE TERMS, THE RIGHTS OF ANY THIRD PARTY, OR ANY APPLICABLE LAW OR REGULATION.
We may, under certain circumstances and without prior notice, for any reason whatsoever, immediately terminate your ability to access the Platform or any portion thereof. Cause for such termination will include, but not be limited to, (a) breaches or violations of these Terms or any other agreement that you may have with is (including, without limitation, non-payment of any fees owed by you to us), (b) requests by law enforcement or other government agencies, (c) a request by you, (d) unexpected technical, security or legal issues or problems, or (e) participation by you, directly or indirectly, in fraudulent or illegal activities. Termination may also include removal of some or all of the materials uploaded by you. You acknowledge and agree that all terminations may be made by us in our sole discretion and that we will not be liable to you or any third-party for any termination of your access or for the removal of any of the materials uploaded by you to the Platform. Any termination under these Terms by us will be in addition to any and all other rights and remedies that we may have. 11
24. AVAILABILITY AND UPDATES
We may alter, suspend, or discontinue the Platform at any time and for any reason or no reason, without notice. The Platform may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. We may periodically add or update the information and materials on the Platform without notice.
While we try to ensure the Platform is normally available twenty-four (24) hours a day, we do not undertake any obligation to do so, and we will not be liable to you if the Platform is unavailable at any time or for any period.
Information sent or received over the Internet is generally unsecure and we cannot and do not make any representation or warranty concerning security of any communication to or from the Platform or any representation or warranty regarding the interception by third parties of personal or other information. You must exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You are responsible for safeguarding the password that you use to access the Platform and you are responsible for any activities or actions under your password. You agree to keep your password secure. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you logout from your account at the end of each session. You are responsible for any password misuse or any unauthorized access. We will not be liable for any loss or damage arising from your failure to comply with these requirements.
27. COURIER AND RESTAURANT USERS
If you are a Courier User or a Restaurant User on our network, this section applies to you. Except to the extent that you also use Platform and related activities as a customer, only the provisions of these Terms that govern the use of the Platform software and the digital interface with our network apply to you, and your Existing Agreement (as defined below) with us remains the primary agreement between you and us. To the extent the terms of your Existing Agreement are less restrictive than, or otherwise conflict with, the terms and conditions herein, the more restrictive or conflicting terms and conditions herein apply, but solely with respect to the use of the Platform software and the digital interface with our network. If your Existing Agreement does not contain provisions that are at least as restrictive as Sections 20, 21 and 22, those provisions apply to you, but they only affect our or your rights or obligations hereunder.
and will not affect the validity and enforceability of the remaining provisions. The failure of Company to exercise or enforce any right or provision under these Terms will not constitute a waiver of such right or provision. Any waiver of any right or provision by us must be in writing and will only apply to the specific instance identified in such writing. You may not assign these Terms or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without our prior written consent. We may assign these Terms without restriction.
29. GOVERNING LAW AND JURISDICTION
The Platform and these Terms will be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle or rule and notwithstanding your domicile, residence or physical location.
Any action or proceeding arising out of or relating to the Platform and under these Terms will be instituted in the courts of the province of Alberta and/or the Federal Court of Canada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.
No waiver under these Terms is effective unless it is in writing and signed by an authorized representative of the party waiving its right. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
31. REPORTING AND CONTACT
The Platform is operated by Ditch the Kitchen Inc..
Should you become aware of misuse of the Platform including libelous or defamatory conduct, you must report it to the Company at firstname.lastname@example.org
All other feedback, comments, requests for technical support, and other communications relating to the Platform should be directed to: email@example.com
Effective Date: November, 2018