Effective: November 19, 2020
We reserve the right, at our sole discretion, to modify or replace these Terms at any time without incurring any liability or obligation. See below under the heading “Modification of The Service and Terms” for more information.
These Terms are between you and Food2Desk Technologies, Inc. (“Food2Desk”) which is an OBCA company with offices located at 468 Wellington Street West, Suite 200, Toronto, Ontario, M5V 1E3. When used in these Terms, the terms “us”, “we” and “our” refer to Food2Desk. Food2Desk, our affiliates, licensors and each of their respective officers, directors, employees, attorneys, agents and other users, are referred to collectively in these Terms as the “Food2Desk Group”. For the avoidance of doubt, the Food2Desk Group does not include any third parties such as Merchants (as defined below).
We provide a way for you to order (“Order”) products or services (“Products”) from third party restaurants and other food-preparation establishments (“Merchants”). Through our platform you can place an Order for Merchant Products via the Food2Desk interface made available on the User App for delivery by a person employed by Food2Desk or an independent delivery contractor engaged by Food2Desk to deliver Merchant Products (collectively “Runners”) and/or view and search for the menus of Merchants. Food2Desk is a limited agent for its Merchants with the authority to offer a Merchant’s Products for sale at the price shown through the Service. Once placed through our Platform, your Order will be communicated to the applicable Merchant and matched with an available Runner to schedule delivery of your Order to the address provided by you by a Runner. Food2Desk has the authority to accept or decline your Order on behalf of the Merchant and collect payment for your Order on behalf of the Merchant. Food2Desk also has the authority, to provide certain discounts and promotional offers in connection with Products offered through the Service. Supplemental terms and conditions may apply to any such discounts or promotional offers.
Food2Desk does not provide the Products itself or operate any of the Merchants, and is not itself a restaurant, other food-preparation establishment, or delivery service. Food2Desk is not responsible for the quality, character or safety of any Products available through the Service, that is the sole responsibility of the Merchant. The provision of the Product and fulfilment of any Orders by the Merchant to you constitutes an agreement entered into between you and the Merchant. Food2Desk, as limited agent for its Merchants, will never be a party to such agreement and Food2Desk will have no liability for any problems caused by the Merchants including, without limitation, missed or late deliveries, missed items, and any problems with respect to the quality of the goods delivered including if goods cause illness, allergic reactions or incorrect nutritional values, dietary information or other menu information.
SIGNING UP FOR THE SERVICE
You must be at least the age of majority or older in your jurisdiction of residence in order to use the Service. If you reside in a jurisdiction that restricts the use of the Service because of your age, or restricts the ability to enter into contracts such as this one due to age, you must abide by such age limits and you must not use the Service.
You represent and warrant that the information you provide to Food2Desk is true, accurate, and complete and that you will keep the information you have provided to Food2Desk current through the Service. Food2Desk is entitled at all times, and at Food2Desk’s sole discretion, to verify the information that you have provided and to refuse use of the Service without providing reasons.
MAKING AN ORDER
The Service allows you to send Orders to Merchants. For avoidance of doubt, Food2Desk does not prepare or fulfil any Orders for Products and no members of the Food2Desk Group will be liable for any transactions between you and Merchants. Once you have created a Food2Desk Account, you may select Products from a Merchant’s menu, choose your desired quantities and then add them to your cart. Once you have made your selection, you may proceed to place your Order. At this time you will have the opportunity to review your cart items. After you review and confirm that the items in your cart are correct, you may proceed to place your Order, provide your payment information or select the other payment options, if available, and an Order will be created and sent to the Merchant. You are responsible to ensure that all of your Order details, including billing, delivery address and other information are current, complete and accurate. The GPS receiver – which should be installed on the mobile device on which you have downloaded either of the Applications – detects your location and uses your location to optimize sending an Order to a Merchant. Your Order is then paired with an available Runner who will then deliver your Order to the delivery address provided by you in your Order once the preparation of your Order is completed by the Merchant. Food2Desk has the sole and complete discretion to accept or reject each Order on behalf of the Merchant. Once you have submitted your Order, you will not be entitled to change or cancel your Order, nor will you be entitled to a refund of your Order. Food2Desk will notify you as soon as reasonably practicable if your Order is rejected for any reason. Your Order may be rejected at any time because the Merchant is too busy, due to weather conditions or for any other reason. If your Order is accepted, payment will be authorized by Food2Desk and you will be provided an estimate on when your Order will be ready. Neither Food2Desk nor the Merchant guarantee that Orders will be ready for pick-up within the estimated times.
If you have any issues with your Order (including any issue regarding the accuracy of information provided through the Service), or wish to change or cancel your Order after it has been accepted, you may contact us directly ([email protected]) and we will assist you in resolving your issue. We cannot guarantee that we can resolve any complaint or issue you have because resolution is at the sole discretion of the Merchant once an Order has been accepted. If we are unable to assist you in resolving a complaint, you will need to address it directly with the Merchant. All complaints regarding the quality of any Products should be addressed directly to the Merchant. Food2Desk has no obligation to compensate you for any dispute you may have with any Merchant.
In the event you have placed and Order through the Service independently of a corporate program administered by Food2Desk, due to standard banking procedures, once you have placed an Order using a banking or credit card and your payment has been authorised, your bank or card issuer will “ring-fence” the full amount of your Order. If your Order is not confirmed or cancelled for any other reason, your bank or card issuer will not transfer the funds for the Order to us, and will instead release the relevant amount back into your available balance. However, this may take a period of typically up to 5 working days (and in some cases up to 30 days, depending on your bank or card issuer). You acknowledge and agree that no members of the Food2Desk Group nor the relevant Merchant will be responsible or liable to you in relation to this delay by your bank or card issuer in the release of funds back into your account.
You may only access the Service using the means and methods permitted by Food2Desk. It is your responsibility to ensure you download the correct Application for your device. Food2Desk is not liable if you do not have a compatible mobile device or if you download the wrong version of either of the Applications for your mobile device. Food2Desk reserves the right to terminate your use of the Service should you be using the Service with an incompatible or unauthorised device.
By using the Service, you further agree that:
• You will only use the Service or download either of the Applications for your sole, personal use and will not resell it to a third party;
• You will not “frame”, “mirror” or otherwise incorporate the Platform, Website, Applications or the Service on any commercial or non-commercial website;
• You will not authorize others to use your account;
• You will not assign or otherwise transfer your account to any other person or legal entity;
• You will not remove (or permit anyone else to remove) any watermarks, labels or other legal or proprietary notices included in the Platform, Applications, Website, Service or Collective Content (as defined below);
• You will not use the Platform, Applications, Website or Service for unlawful purposes, including but not limited to sending or storing any unlawful material or for fraudulent purposes;
• You will not attempt to, assist, authorise or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Platform, Applications, Website or the Service;
• You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted to or through the Platform or impersonate another person or organization or misrepresent their affiliation with a person or entity;
• You will not use the Platform, Website, either of the Applications or Service to cause nuisance, annoyance or inconvenience;
• You will not impair the proper operation of any network accessed through the Platform, Website, either of the Applications or Service;
• You will not try to harm the Platform, Website, either of the Applications or Service in any way whatsoever;
• You will not copy or distribute the Website or either of the Applications without written permission from Food2Desk;
• You will keep secure and confidential your Food2Desk Account password or any identification we provide you which allows access to the Service;
• You will provide us with whatever proof of identity we may reasonably request;
• You will only use the Service through an internet connection or mobile network which you are authorized to use;
• You are aware that when the Service may require receiving or sending messages by SMS (if available in your jurisdiction), standard messaging charges (if any) will apply;
• You will not use the Platform, Website, either of the Applications or Service in a manner that violates the rights (including, but not limited to contractual, intellectual property or proprietary rights) of any third party;
• You will not use the Service with an incompatible or unauthorized device;
• You will not use the Platform, Website, either of the Applications or Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate third party privacy rights;
• You will not use the Platform, Website, either of the Applications or Service to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
• You will not interfere with or disrupt the integrity or performance of the Platform, Website, Applications or Service or the data contained therein;
• You will not attempt to gain unauthorized access to the Platform, Website, either of the Applications or Service or its related systems or networks;
• You will not use the Platform, Website, either of the Applications or Service to breach any applicable law;
• You will comply with all applicable laws including the laws of the area in which you are present while using the Platform, Website, either of the Applications or Service; and
• You will not send spam or otherwise duplicative or unsolicited messages in violation of applicable laws.
You will be solely liable for any damages resulting from any violation of the foregoing restrictions.
The Service is available to you free of charge. Food2Desk reserves the right to introduce a fee for the use of the Service. If Food2Desk decides to introduce such a fee, Food2Desk will inform you accordingly and allow you to either continue or terminate your use of the Service.
Food2Desk will charge you on behalf of the Merchant for the Order placed by you as such Merchant’s contractual service-provider. Payments made in such manner will be considered the same as payment made directly by you to the Merchant and will be inclusive of applicable taxes where required by law. You agree that you will pay for all Products you purchase from the Merchant (whether in fiat currency or in credits made available to you in connection with a corporate program administered by Food2Desk), and that Food2Desk may charge you the total amount for your Order using the payment method provided by you (including any taxes and late fees, as applicable). You are responsible for the timely payment of all fees and for providing Food2Desk with a valid method of payment at all times. Any payment made (whether in fiat currency or in credits made available to you in connection with a corporate program administered by Food2Desk) is non-refundable. Payment options available to you when registering for the Service may include all major credit cards and Debit/Visa (traditional debit cards are not accepted), or in certain circumstances, credits made available to you in connection with a corporate program administered by Food2Desk. Food2Desk may add additional payment methods from time to time or choose to no longer offer certain payment methods. If your primary Food2Desk Account payment method is unavailable, you agree that Food2Desk as the Merchant’s contractual service-provider, may use a secondary payment method in your Food2Desk Account, if available.
Food2Desk uses a third-party payment processor (the “Payment Processor”), which Food2Desk may choose from time to time, to link the payment card you provide to the Service, and by using such third-party service, you agree to its terms and conditions of service. You hereby authorize Food2Desk to share with the Payment Processor that financial information, banking details and transaction information related to your payment method. You also agree that Food2Desk is not responsible for the use or misuse of such financial information, banking details and transaction information by the Payment Processor.
The processing of payments in connection with your use of the Service will be subject to the terms, conditions and privacy policies of your credit card issuer in addition to these Terms. Food2Desk is not responsible for any errors by the Payment Processor.
PROMOTIONS AND REWARDS
Food2Desk may, in Food2Desk’s sole discretion, provide offers, programs and promotions (“Promos”) that allow you to obtain account credits, reward points, or other features or benefits related to the Services and/or a third party provider’s services (collectively, “Promo Benefits”). Promos may be subject to additional terms and conditions that Food2Desk establishes from time to time. You agree that:
• Promos may result in different amounts charged for the same or similar Products obtained through the use of the Service, and you agree that such promotional offers and discounts, unless also made available to you, will have no bearing on your use of the Service;
• Promos must be applied to an Order no later than the specified deadline associated with the Promo. Promos not used by the specified deadline will expire;
• Promos must be used for the intended audience and purpose, and in a lawful manner;
• Promos may only be redeemed towards Orders on the Platform and may not be applied to taxes or other items/fees/charges as determined from time to time by us;
• Promos may not be applied to Products that include alcohol;
• Promos may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Food2Desk;
• Promos may be changed, terminated or disabled by Food2Desk at any time for any reason without prior notice or liability to Food2Desk;
• Promo Benefits may only be used pursuant to the specific terms that Food2Desk establishes for the applicable Promo;
• Food2Desk reserves the right at any time and, in our sole discretion, to add to or amend terms and conditions in relation to the use of Promos or to vary or terminate the operation of a Promo at any time without notice; and
• Promo Benefits are not redeemable for cash and may be subject to expiration or termination conditions.
Certain Promos may only be available to new users. New users are natural persons who have not yet created a Food2Desk Account. New users may also be required to complete an Order before being eligible for any Promo offer and the Promo Benefits. Additional terms and conditions specific to new user Promos may be specified by Food2Desk from time to time.
Food2Desk reserves the right to delay delivery of Promo Benefits pending verification that a user has complied with the terms of the Promo, including verification of the user’s identity. Food2Desk users that make a referral code available to others must not make any false or misleading representations related to Food2Desk or the benefits a new user may receive upon signing-up for Food2Desk. Food2Desk reserves the right to deduct or cancel Promo Benefits in the event that Food2Desk determines or believes that the use or redemption of the Promo was in error, fraudulent, illegal, or in violation of the applicable Promo terms or these Terms.
Account credits provided by Food2Desk, whether as a Promo Benefit, through the redemption of rewards points or otherwise provided by Food2Desk through any means, have no cash value and will only apply in the local currency and are not transferable. If a purchase on Food2Desk exceeds the account credit value in your Food2Desk Account, the remaining balance will be charged to the registered credit card. Account credits may be cancelled and removed from your account. Unless otherwise specified in the particular Promo, account credits are subject to cancellation by Food2Desk at any time and may be removed from your account at Food2Desk’s discretion.
Unless otherwise prohibited by applicable law, Food2Desk reserves the right to cancel and/or expire any rewards points in your account after one year of account inactivity.
For the purpose of these Terms, the following definitions apply:
“Content” means all content featured or displayed, including, but not limited to, logos, icons, trademarks, text, graphics text, graphics, photographs, images, moving images, sound, illustrations, music, software (excluding the Applications), opinions, remarks, comments, artwork, links, questions, suggestions, information or other materials.
“Food2Desk Content” means Content owned or used by Food2Desk, its affiliates or third-party licensors (including Merchants) and made available through the Service, but excluding User Content.
“User” means a person who accesses or uses the Service.
“User Content” means Content that a User posts, uploads, publishes, submits or transmits to be made available through the Service.
“Collective Content” means, collectively, Food2Desk Content and User Content.
Subject to your compliance with these Terms, Food2Desk grants you a limited, revocable, non-exclusive, non-transferable license:
• to view, download and print any Food2Desk Content solely for your personal and non-commercial purposes; and
• to view any User Content to which you are permitted access solely for your personal and non-commercial purposes.
You have no right to sublicense the license rights granted in this section.
You may not use, copy, adapt, modify, create derivative works from, distribute, license, sell, transfer, publicly display, publicly perform, reproduce, transmit, stream, broadcast or otherwise exploit the Collective Content, except as expressly permitted in these Terms. You may not reuse any Collective Content without first obtaining the written consent of Food2Desk. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Food2Desk or its licensors, except for the licenses and rights expressly granted in these Terms. Any rights not expressly granted in these Terms are reserved.
LICENSE GRANTED BY USER
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content through the Service. User Content will be deemed non-confidential and non-proprietary. By providing User Content to Food2Desk, you grant Food2Desk a non-exclusive, perpetual, transferable, worldwide, royalty-free, right to use, copy, distribute, display, modify, make derivative works from, and disclose to third parties any User Content for any purpose, in any medium and throughout the world. You hereby waive any moral rights in your User Content in favour of Food2Desk.
You acknowledge that Food2Desk only acts as a passive conduit for the distribution of the User Content and is not responsible or liable to you or to any third party for the content or accuracy of the User Content. Food2Desk does not continuously monitor User Content published by you or moderate between Users, nor will Food2Desk be under an obligation to do so. Without limiting the foregoing, you acknowledge and agree that any remarks, opinions, comments, suggestions and other information expressed or included in the User Content do not necessarily represent those of Food2Desk.
For further discussion of Food2Desk’s responsive capabilities, see the section below entitled “Reservation of Rights”. You will be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from any User Content uploaded, published, submitted or transmitted by you.
Subject to your compliance with these Terms, Food2Desk grants you a limited, non-exclusive, revocable, non-transferable license to download and install a copy of each of the Applications on a single mobile device that you own or control and to run such copy of the Application solely for your own personal and non-commercial use. You will not and have no right to:
• license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Platform, either of the Applications, Website, Service or Collective Content in any way;
• copy, adapt, modify or make derivative works based upon the Platform, either of the Applications, Website, Service or Collective Content;
• create Internet “links” to the Service or “frame” or “mirror” either of the Applications or Website on any other server or wireless or Internet-based device; or
• reverse engineer or access either of the Applications or the Website in order to: (i) design or build a competitive product or service; (ii) design or build a product using similar ideas, features, functions or graphics of either of the Applications or the Website; (iii) copy any ideas, features, functions or graphics of either of the Applications or the Website; (iv) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of either of the Applications or the Website; (v) misuse either of the Applications or the Website, including by hacking or “scraping”; (vi) send spam or otherwise duplicative or unsolicited messages of any kind in violation of applicable laws; (vii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or anything which would violate third party privacy rights; (viii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ix) interfere with or disrupt the integrity or performance of either of the Applications or the Website; or (x) attempt to gain unauthorized access to either of the Applications, the Website or their related systems or networks.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Food2Desk or its licensors, except for the licenses and rights expressly granted in these Terms.
INTELLECTUAL PROPERTY OWNERSHIP
Food2Desk alone (and its third party licensors, where applicable) will own all right, title and interest, including all related intellectual property rights, in and to the Platform, both of the Applications, Website and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Platform, either of the Applications, Website or the Service.
Unless otherwise stated, the copyright and other intellectual property rights in the Food2Desk Content are owned by us, the Merchants or our other licensors. These works are protected by copyright laws, trademark laws, and other intellectual property laws and treaties, both in Canada and around the world and all rights therein are reserved. For the purposes of these Terms, any use of extracts from the Food2Desk Content other than in accordance with these Terms is prohibited.
These Terms do not constitute a sale and do not convey to you any rights of ownership in or related to the Platform, either of the Applications, Website or the Service, or any intellectual property rights owned by Food2Desk. Food2Desk’s name, logo, and the product names associated with the Service are trademarks of Food2Desk, its affiliated companies or third parties, and no right or license is granted to use them.
ADVERTISING & THIRD PARTY WEBSITES
If you elect to have any business dealings with anyone whose products or services may be advertised on the Platform, either of the Applications, Website or the Service, you acknowledge and agree that such dealings are solely between you and such advertiser and you further acknowledge and agree that no member of the Food2Desk Group will have any responsibility or liability for any losses or damages that you may incur as a result of any such dealings.
During use of the Service, you may enter into correspondence with, purchase goods or services from, or participate in promotions of Merchants, advertisers or sponsors through a link on the Website or through either of the Applications or Service. Links to third party websites and applications on the Platform, either of the Applications, Website or the Service are provided solely for your convenience. If you use these links, you leave the Platform or Service and are beyond Food2Desk’s control. We have not reviewed and do not control any of these third-party websites or applications (and are not responsible for these websites and applications or their content or availability) which have their own separate terms and conditions as well as privacy policies. Food2Desk is not responsible and cannot be held liable for the content and activities of these websites or applications. We do not endorse or make any representation about these websites, their content, or the results from using such websites applications or content. If you decide to access any of the third-party websites or applications linked to the Platform or Service, you do so entirely at your own risk.
Food2Desk reserves the right to prohibit or remove (or require you to remove) any link to the Platform or Service, including, without limitation, any link which contains or makes available any content or information of the foregoing nature, at any time.
The downloading and viewing of either of the Applications, Website or any of the Collective Content is done at your own risk. Food2Desk cannot and does not guarantee or warrant that the Platform, Service, either of the Applications, Website or any of the Collective Content are compatible with your computer system or mobile device or that the Platform, Service, either of the Applications, Website or any of the Collective Content, or any links from the Platform, Service, either of the Applications, Website or any of the Collective Content, will be free of viruses, worms, malware, Trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system or mobile device, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system or mobile device that may be necessary as a result of your use of the Platform, Service, either of the Applications, Website or any of the Collective Content.
Furthermore, Food2Desk does not guarantee the confidentiality of any communications made by you through the Platform, Service, either of the Applications or Website. You understand and agree that Food2Desk cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Platform, Service, either of the Applications or Website.
By accepting these Terms and using the Service, you agree that you will defend, indemnify and hold harmless all members of the Food2Desk Group from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) your violation or breach of these Terms or any applicable law or regulation, whether or not referenced herein; (ii) your violation of any rights of any third party, including, without limitation, Merchants arranged via the Service; or (iii) your use or misuse of the Service.
Additionally, you agree to indemnify and hold harmless the Food2Desk Group against all costs, expenses, damages, losses and liabilities incurred or suffered by any member of the Food2Desk Group related to any User Content posted or transmitted by you through the Service.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS), ALL OF WHICH ARE HEREBY DISCLAIMED BY US TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FOOD2DESK DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT: (I) EITHER OF THE APPLICATIONS OR SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (II) EITHER OF THE APPLICATIONS OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (IV) ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR PERSONAL EXPECTATIONS OR BE OF A CERTAIN QUALITY; (V) ERRORS OR DEFECTS IN THE SERVICE OR EITHER OF THE APPLICATIONS WILL BE CORRECTED; OR (VI) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FOOD2DESK MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICE, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NO MEMBER OF THE FOOD2DESK GROUP WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REVENUE, ECONOMIC ADVANTAGE, GOODWILL, DATA, OPPORTUNITY OR SALES, DAMAGES FOR PERSONAL INJURY, OR FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER INTANGIBLE LOSSES (WHETHER OR NOT THE FOOD2DESK GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE, INCLUDING DAMAGES CAUSED BY MALWARE, VIRUSES OR ANY INCORRECTNESS OR INCOMPLETENESS OF ANY CONTENT YOU MAY ACCESS AND ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SERVICE OR EITHER OF THE APPLICATIONS, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (III) UNAUTHORIZED ACCESS TO, LOSS, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA SUBMITTED TO OR RECEIVED FROM THE SERVICE; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE, RELEASE AND DISCHARGE THE FOOD2DESK GROUP FROM ALL LEGAL CLAIMS, DEMANDS, DAMAGES, ACTIONS OR CAUSES OF ACTION IN RESPECT OF THE FOREGOING. FOOD2DESK WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ANY OF OUR OBLIGATIONS UNDER THESE TERMS THAT IS CAUSED BY EVENTS OUTSIDE OUR REASONABLE CONTROL.
FOOD2DESK’S APPLICATIONS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
WITHOUT PREJUDICE TO THE FOREGOING, AND INSOFAR AS ALLOWED UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF THE FOOD2DESK GROUP TO YOU IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SERVICE WILL IN NO EVENT EXCEED CAD$100.00.
GEOGRAPHIC APPLICATION OF THE SERVICE
The Service and/or Platform may not be available at all or any times and in all or any jurisdictions. Furthermore, nothing on the Platform constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation may be prohibited by law.
RESERVATION OF RIGHTS
Food2Desk retains the right at its sole discretion to deny access to anyone to the Platform or Service, at any time and for any reason. Food2Desk further retains the right to immediately terminate your use of the Service should you not comply with any of these Terms. Food2Desk will have the right to investigate and prosecute violations of any of these Terms to the fullest extent of the law and you agree to provide to Food2Desk sufficient information to enable Food2Desk to investigate whether such User Content breaches these Terms. Food2Desk may involve and cooperate with law enforcement authorities in prosecuting Users who violate this Agreement. Food2Desk further reserves the right at its sole discretion to block or remove (in whole or in part) any User Content posted or transmitted by you and which Food2Desk believes is not in accordance with these Terms (including without limitation materials which infringe or may infringe third party intellectual property rights, rights of privacy or personality rights), or is otherwise unacceptable to Food2Desk. You acknowledge that Food2Desk has no obligation to monitor your access to or use of the Service, either of the Applications or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Platform, either of the Applications, Website and Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Food2Desk reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Food2Desk, at its sole discretion, considers to be in violation of this Agreement or otherwise harmful to the Service or either of the Applications.
You are entitled to terminate your use of the Service at any time by permanent deletion of the Applications installed on your smart phone, thus disabling the use by you of either of the Applications and the Service. You can close your Food2Desk Account at any time, provided all outstanding payments for the Service has been received by Food2Desk, by following the instructions on Food2Desk’s website. Food2Desk is entitled to terminate your use of the Service at any time without notice and with immediate effect (by disabling your use of either or both of the Applications and the Service) for any or no reason, including, if we believe: (i) you may have violated these Terms, (ii) you may create risk or possible legal exposure for us; (iii) prolonged inactivity; or (iv) our provision of the Services to you is no longer commercially viable. Suspension or termination may also include removal of some or all of the User Content uploaded by you. We may make reasonable efforts to notify you by the email address associated with your account, through the Platform or the next time you attempt to access your account, depending on the circumstances. You acknowledge and agree that all suspensions or terminations may be made by Food2Desk in its sole discretion and that no members of the Food2Desk Group will be liable to you or any third-party for any suspension or termination of your access or for the removal of any of the materials uploaded by you to the Platform. Any suspension or termination of this Agreement by Food2Desk will be in addition to any and all other rights and remedies that Food2Desk may have.
The Terms (including any referenced documents these Terms) constitute the entire agreement between you and Food2Desk and governs your use of the Service, superseding any prior version of these Terms between you and Food2Desk, including all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
WAIVER AND SEVERABILITY OF TERMS
The failure of Food2Desk to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction or arbitrator to be invalid, the parties nevertheless agree that the court or arbitrator should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
MODIFICATION OF THE SERVICE AND TERMS
Food2Desk reserves the right, at its sole discretion to change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) as well as any material or content contained on or provided through the Platform, (including without limitation, any of the Collective Content, price, features, availability of goods, menus, Merchants, posting and rating/reviews of Merchants) at any time and for any or no reason, without notice. Food2Desk may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. Food2Desk may upgrade the Service at any time and may remotely access the Service (including for greater certainty either of the Applications and Platform) at any time for any lawful reason, in particular to update the software or to perform software maintenance.
Food2Desk reserves the right, at its sole discretion, to modify or replace any of these Terms. If we change these Terms, we will provide notice to you by posting the revised Terms on our Website and by indicating at the top of this page the date these Terms were last updated. Such changes will be effective when the revised Terms are posted to our Website. You should check the Terms frequently for any revisions, and especially before your use of the Service. By continuing to access or use the Service after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new Terms, in whole or in part, please stop using the Service.
Food2Desk may give notice by means of a general notice sent through either of the Applications on which you have an account, or by electronic mail to your email address on record in Food2Desk’s account information, or by written communication sent by regular mail to your address on record in Food2Desk’s account information. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by mail) or 12 hours after sending (if sent by email or notification through either of the Applications).
You may not assign your rights under these Terms without prior written approval of Food2Desk. Food2Desk may freely assign its rights and obligations under these Terms without your consent.
You agree to comply fully with all Canadian and foreign export laws and regulations to ensure that neither the Applications, Website, Platform or Service nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using either of the Applications, Website, Platform or Service, you represent and warrant that: (i) you are not located in a country that is subject to a Canadian Government embargo, or that has been designated by the Canadian Government as a “terrorist supporting” country; and (ii) you are not listed on any Canadian Government list of prohibited or restricted parties.
Food2Desk provides and makes available the Platform, which is a proprietary online marketplace platform using web based technology that connects Merchants, Runners and customers, as described in these Terms. Food2Desk is an online connection and communication platform. Merchants and Food2Desk are independent businesses whose relationship is governed by the separate Merchant Terms and Conditions. Nothing in any of the Merchant’s agreement(s) with Food2Desk, nor these Terms, relationship or transactions shall create or be construed as creating an agency, partnership, legal representative, fiduciary or joint venture relationship between Food2Desk and Merchant (or Merchant’s employees, representatives or locations), Food2Desk and Runner, or Food2Desk and customers. Neither Food2Desk, nor Merchant shall have any right, power or authority to create any obligation or responsibility on behalf of the other party. For greater certainty, nothing in these Terms will modify or vary the existing relationship, nor create a new relationship between Runners and Food2Desk. With respect to Runners, these Terms solely govern the use by Runners of the Runner App and do not in any way supplement, modify or relate to the employment relationships or engagements (as applicable) of Runners with Food2Desk or the agreements entered into or the related policies that may be adopted by Food2Desk from time to time in connection with such arrangements.
Pricing and offers available on the Website and either of the Applications may differ from prices and offers in stores, restaurants, or when ordering directly through Merchants.
Food2Desk will not be liable to you for any failure of or delay in the performance of its obligations under these Terms for the period that such failure or delay is due to causes beyond Food2Desk’s reasonable control, including but not limited to acts of God, power outages, internet disconnectivity, war, strikes or labor disputes, embargoes, government orders, pandemic (including COVID-19) or any other force majeure event.
APPLICABLE LAW AND DISPUTE RESOLUTION
To the fullest extent permitted by applicable law, you irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada, with respect to any dispute, controversy or claim (a “Dispute”) arising out of or in connection with these Terms or your use of the Service. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded. If you are a resident of the Province of Quebec, Canada, the laws in that province will apply and the courts in that province will have jurisdiction over any Dispute.
WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND FOOD2DESK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Food2Desk agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which the following provision is enforceable, the following mandatory arbitration provision applies to you. You agree that any Dispute will be submitted to and determined by binding arbitration in accordance with the applicable rules of the American Arbitration Association. The number of arbitrators will be one and the parties will mutually agree and appoint an arbitrator within 10 days of the delivery of the notice of arbitration, failing which the arbitrator will be appointed by International Center for Dispute Resolution Canada. The place of arbitration will be Toronto, Ontario, Canada. The language of arbitration will be English. By agreeing to this provision, the parties agree that arbitration will be the exclusive forum for resolving all Disputes and the decision of the arbitrator will be final and binding upon both parties hereto. The decision of the arbitrator will be executory, and judgment thereon may be entered by any court of competent jurisdiction.
You acknowledge and agree that the resolution of any Dispute under this section, including the existence thereof, any proceedings engaged in for the purposes of resolving such Dispute, and any elements and results thereof, are confidential and may not be disclosed to any person other than the applicable arbitrator, any court having competent jurisdiction, the parties to such Dispute, their respective counsel, and any person that may be reasonably necessary to conduct the proceeding in question.
If made available for purchase through the Services, if your Order includes alcohol, you warrant that you are of legal age to purchase and consume alcohol in the area in which the alcohol is delivered and are not ordering alcohol for any person below the legal age in the applicable jurisdiction. You acknowledge and agree that Merchants and Runners may require valid government-issued photo identification(s) matching the name on the Order and proving your age to the Merchant or Runner, and that the recipient is not intoxicated when receiving delivery. If you are unable to meet these conditions to the satisfaction of the Merchant or Runner, then alcohol Products may be withheld, and any refund for such withholding is at the discretion of the Merchant, Runner or Food2Desk. If your Order includes alcohol and the alcohol is to be delivered, the delivery address must be a residential or private addresses. For greater certainty, alcohol Orders may be subject to time and location restrictions.