Last Updated: July 2, 2016
This is a legal agreement between you, whether you are an individual, visitor to the website, or Vendor with Qulinary that states the material terms and conditions that govern your use of the Services. This Agreement, together with all updates, supplements, additional terms, and all of Qulinary’s rules and policies collectively constitute this agreement between you and Qulinary (“Terms” or “Agreement”). BY ACCESSING THE SERVICES AND/OR PARTICIPATING IN THE SERVICES, YOU AGREE THAT YOU HAVE ALL NECESSARY RIGHTS AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE LEGALLY BOUND BY THIS AGREEMENT.
YOU ACKNOWLEDGE AND AGREE THAT QULINARY IS A TECHNOLOGY SERVICES PROVIDER AND QULINARY DOES NOT PROVIDE FOOD PREPARATION SERVICES. QULINARY OFFERS INFORMATION AND IT IS UP TO INDEPENDENT THIRD PARTY VENDORS TO OFFER FOOD PREPARATION SERVICES. ANY DECISION BY YOU TO ACCEPT FOOD PREPARATION FROM A VENDOR IS A DECISION MADE BY YOU AT YOUR SOLE DISCRETION. QULINARY DISCLAIMS ALL RESPONSIBILITY OR LIABILITY FOR ANY FOOD PREPARATION SERVICES VOLUNTARILY PROVIDED TO YOU BY SUCH INDEPENDENT THIRD PARTY VENDOR.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Who can Use the Services?
The Services are offered and available to users who are 18 years of age or older. By using the Services, you represent and warrant that you are of legal age to form a binding contract with Qulinary and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services. Additional terms (“Additional Terms”) apply to Vendors who wish to provide food preparation services to users.
For Vendors, the Services are offered and available only if you are 18 years of age of older, have a valid business license in the local and state in which you will be providing food preparation, and you must be capable of forming a legally binding agreement and not otherwise be barred from providing food preparation services. In order to become a Vendor, you can apply here and fill out an application. You must also have a mobile phone that is capable of using our App and you must agree to all Qulinary policies and rules relating to your interactions with Individuals who purchase meals. You agree that we may perform a review to determine your eligibility to use the Services as a Vendor. You agree that when requested by us that you will provide any required or applicable documentation, including any necessary insurance policies or business licenses. You agree that Qulinary shall have the right to determine whether or not you may become a Vendor, and that we cannot guarantee or promise to you that you will or can become a Vendor.
Qulinary reserves the right, in its sole discretion to terminate access to the Services to any Vendor or Individual in its sole discretion.
Independent Contractor Relationship with Vendor
If you are a Vendor, you understand, acknowledge and agree that you are not an employee of Qulinary in any regard and that nothing in this Agreement will be construed as establishing an employment or agency relationship between you and us, and that you have no authority to bind Qulinary by contract or otherwise. As an independent contractor, you agree that you will determine, in your sole discretion, the manner and means by which you provide meals to Individuals and that you will at all times comply with all applicable laws, these Terms, the Meal Contract, the Delivery and Cancellation Policy and any other guidelines or rules provided to you by us.
As an independent contractor, you agree that you will report to all applicable government agencies as income all payments received by you pursuant to these Terms. This means you will be solely responsible for payment of all withholding taxes, social security, workers’ compensation, unemployment and disability insurance or similar items required by any government agency for any payments received by you. You are not entitled to any benefits paid or made available by Qulinary to its employees, including, without limitation, any vacation or illness payments, or to participate in any plans, arrangements or distributions made by Qulinary pertaining to any bonus, stock option, profit sharing, insurance or similar benefits. You agree to defend, indemnify and hold harmless Qulinary and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from your breach of the foregoing obligations.
We may revise and update these Terms from time to time in our sole discretion. When we make a revision, we will let you know by posting the revised Terms on the website, in our App or through other communications. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. However, any material changes to these Terms or changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted. If you do not agree to be bound by the modified Terms, then you may not use the Services anymore. We further reserve the right to discontinue all or any part of the Services at any time and without notice in our sole discretion.
Meal Order Terms
Qulinary provides a platform that enables Individuals to purchase meals (“Meal”) from Chefs. Using the Services, individuals may review Chefs, their menus, dates of availability, delivery options, and then order a Meal, which has all necessary information including:
- How the Individual would like to get the Meal, either delivery or pickup
- Gratuity amount
- Available coupons
- Contact details: email, phone number
- Special requests regarding food preparation
Once an Individual submits an order, Chefs will be able to log into their account and view the order, which now constitutes a contract (“Meal Contract”). We can’t guarantee that every Meal will arrive exactly within the timeframe you select. If a Meal arrives early or late, you agree that you will still accept the Meal and release us from all liability for any loss, damage, or inconvenience that you encounter as a result of early or late delivery. Please review our Delivery and Cancellation policy, located here http://blog.tarobites.com/delivery-cancellation-policy. Following the last cancellation period, all sales are final. However, if something unexpected happens in the course of fulfilling your order, we reserve the right to cancel your order for any reason, and if we cancel your order, you will be refunded for any payments made.
Chefs and Individuals agree that their transaction of ordering and preparing a meal is a direct contractual relationship with the other in the Meal Contract. If you are an Individual, you and on behalf of your other individuals in your household or other persons who are consuming the meal agree that this contractual relationship is formed when the Chef offers a meal and an Individual accepts and pays for the meal. Each Meal Contract shall also contain the following terms:
- Each Individual and Vendor agree that Qulinary offers a technology services platform, connecting Individuals and Vendors, to provide the meal and Qulinary is not involved in the preparation of food. Qulinary’s sole responsibility with respect to Orders is limited to: (i) facilitating the availability of the food preparation services, and (ii) serving as the limited authorized agent of the Vendor for the purpose of accepting payments from Individuals on behalf of the Vendor and transmitting such payments to the Vendor.
- Vendor shall perform food preparation services for Individuals (alone or for other Individuals) in a timely, professional and workman like manner, in accordance with the applicable meal order and generally accepted industry standards.
- Vendor and Individual acknowledge that Qulinary does not, in any way, direct or indirectly control Vendor’s food preparation services to Individuals. As such, you each, that is, Individual and Vendor agree to indemnify, hold harmless and defend Qulinary from any and all claims arising out of or related to the Meal Contract, including but not limited to claims arising out of the food preparation services by Vendor to Individual and its guests.
If you are an Individual, you agree to pay and authorize Qulinary’s third party payment processor to charge via credit card or third party payment processing account. All meals are payable by our third-party payment processor, Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a Vendor on Qulinary, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Qulinary enabling payment processing services through Stripe, you agree to provide Qulinary accurate and complete information about you and your business, and you authorize Qulinary to share it and transaction information related to your use of the payment processing services provided by Stripe.
Accessing the Services and Account Security
To access the Services you will be asked to provide certain registration details or other information. It is a condition of your use of the Services that all the information you provide is correct, current and complete.
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services using your user name, password or other security information. 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. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms.
We reserve the right to withdraw or amend the Services in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period.
Qulinary grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Services or the information solely for their intended purpose and not to modify all or any portion of the Services. This license does not include any right to authorize third party use of the Services or their contents; any collection and use of any information, descriptions, or any derivative use of the Services or their contents; any downloading or copying of account information; or any use of data mining, robots, or similar data gathering and extraction tools. The Services may not be reproduced, sold, resold, visited or otherwise exploited for any commercial purpose without Qulinary’s express written consent. You will not frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of Qulinary, its content providers or its affiliates without express written consent. You will not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (iii) bypass any measures we may use to prevent or restrict access to the Services. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you.
Intellectual Property Rights
The Services, including our platform and the Services’ entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Qulinary, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
All trademarks, service marks and trade names of Qulinary or its licensors herein (including but not limited to: Qulinary name, the terms Qulinary, the Services’ design and any logos, logo designs and slogans) (collectively “Marks”) are trademarks or registered trademarks of Qulinary or its affiliates, partners, vendors or licensors. You must not use such Marks without the prior written permission of Qulinary. All other names, logos, product and service names, designs and slogans on this Services are the trademarks of their respective owners. The use of Qulinary Marks on any other web site or network computer environment is not allowed. You shall not use Qulinary’s name or any language, pictures or symbols which could, in Qulinary’s judgment, imply Qulinary’s endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without our prior written consent.
Access and Prohibited Uses
You may use the Services only for lawful purposes and in accordance with these Terms. You agree not to use the Services:
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with the terms set out in these Terms.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
- To impersonate or attempt to impersonate Qulinary, a Qulinary employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Qulinary or users of the Services or expose them to liability.
- Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer or database connected to the Services.
User Contributions and Feedback
The Services will contain user account profiles and other interactive features (collectively, “Interactive Services”) that allow Individuals and Vendors to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Services.
All User Contributions must comply with the Content Standards set out in these Terms. Any User Contribution you post to the Services will be considered non-confidential and non-proprietary. By providing any User Contribution on the Services, including any feedback on the Services (“Feedback”), you grant us the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material according to your account settings. Additionally, in the case of Feedback you grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose. You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Qulinary, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Services.
Right to Takedown User Contributions and Monitoring and Enforcement
We have the right to:
- Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
- Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for Qulinary.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
- Act in an emergency to protect the personal safety of our visitors, the users, the Services, or the public.
- Terminate or suspend your access to all or part of the Services for any violation of these Terms.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS QULINARY AND OUR LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY QULINARY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER QULINARY OR SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review all material before it is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Copyright Infringement/DMCA Notice
If you believe that any User Contributions violate your copyright, please see our Copyright Policy for instructions on sending us a notice of copyright infringement. It is the policy of the Qulinary to terminate the accounts of repeat infringers.
Reliance on Information Posted
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.
Information About You and Your Interaction with the Services
Permission to use Photos of Vendors
Linking to the Services and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
The Services may provide certain social media features that enable you to:
- Link from your own or certain third-party web sites to certain content on our web site.
- Send e-mails or other communications with certain content, or links to certain content, through the Services.
You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any web site that is not owned by you.
- Cause the Qulinary web site or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other web site.
- Link to any part of our web site other than the homepage.
The web site from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.
Links from the Services
If the Services contains links to other web sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those web sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party web sites linked to our Services, you do so entirely at your own risk and subject to the terms and conditions of use for such web sites.
Qulinary will make commercially reasonable efforts to back up the User Submissions and any other of your data hosted by Qulinary as part of the Services. Qulinary, however, disclaims any and all responsibility for any loss of data, information or materials from the Services. You acknowledge that data conversion, processing and manipulation may involve human and/or machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage to you.
Text Messaging and Mobile Phone Consent
You understand and agree that you may receive information and notifications from Qulinary via text messaging or through the Qulinary mobile App. You hereby consent to receive communications via the Qulinary mobile App, text message, or for calls to the mobile number. You acknowledge that you may include additional charges or fees from your wireless provider for these communications, including text message charges and data usage fees, and you acknowledge and agree that you are solely responsible for any such charges and fees and not us.
Representations and Warranties
Additional Vendor Representations and Warranties
- You are at least 18 years or older.
- All information provided to Qulinary in your Vendor application and in any other written or oral communication with Qulinary is true, accurate and complete.
- You will not make any misrepresentation regarding Qulinary, your status as a Vendor, the Services or engage in any other activity in a manner that is inconsistent with your obligations under these Terms.
- You have and will continue to possess a valid business license, are authorized, as applicable in the delivery of your meals, to operate a motor vehicle and have all appropriate licenses, approvals and authority to provide food preparation to third parties in all jurisdictions in which you use the Services.
- You own, or have the legal right to operate, the vehicle you use to deliver meals, and such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind.
- You have, and will maintain in force, a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) for the operation of your vehicle to cover any claims of personal injury or death or tangible or intangible property damage (including loss of use) that may arise out of any act or omission by you.
- You are named or included or scheduled on the insurance policy covering the vehicle you use when delivering meals under the Meal Contract.
- In the event of a motor vehicle accident, you will be solely responsible for compliance with any applicable statutory or department of motor vehicles requirements, and for all necessary contacts with your insurance carrier.
- You will obey all laws related to the matters set forth herein, and will be solely responsible for any violations of such laws.
- You will not discriminate against Individuals on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.
- Failure to comply with any of the above representations and warranties can result in removal of access to the Services or termination of your status as a Vendor, in our sole discretion.
If you are a Vendor, you agree to use any information you receive or obtain about Individuals for the sole purposes of provision of the applicable Meal and for no other purpose and you agree not to disclose this information to any third party for any reason.
“Confidential Information” means and will include (i) any information, materials or knowledge regarding Qulinary and its business, financial condition, products, programming techniques, customers, suppliers, technology or research and development that is disclosed to you or to which you have access in connection with your use of the Services and provision of food preparation services and (ii) any information provided to you or that you obtain about Vendor, Individuals, or guests of Individuals. Confidential Information will not include any information that: (a) is or becomes part of the public domain through no fault of you; (b) was rightfully in your possession at the time of disclosure, without restriction as to use or disclosure; or (c) you rightfully receive from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure.
THE INFORMATION AND ANY SERVICES OR INFORMATION OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND FITNESS FOR PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NEITHER QULINARY NOR ANY PERSON ASSOCIATED WITH QULINARY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER QULINARY NOR ANYONE ASSOCIATED WITH QULINARY REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, UPDATED, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEB SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS, REQUIREMENTS OR EXPECTATIONS. QULINARY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
YOU UNDERSTAND AND AGREE THAT WE CONDUCT A REVIEW OF RELEVANT INFORMATION ON VENDORS AND REQUIRE THAT THEY AGREE TO THE TERMS. FURTHER, ONLY VENDORS WHO SUCCESSFULLY COMPLETE QULINARY’S SCREENING PROCESS, AS DETERMINED IN OUR DISCRETION, WILL BE ALLOWED TO USE THE SERVICES TO PROVIDE FOOD PREPARATION SERVICES. HOWEVER, YOU ACKNOWLEDGE AND AGREE THAT QULINARY DOES NOT CONTROL AND MAKES NO REPRESENTATIONS ABOUT THE ABILITY OF VENDORS OR HOW FOOD PREPARATION SERVICES ARE PERFORMED.
AS PART OF THE QULINARY SERVICE WE TRY TO ENSURE THAT OUR INDIVIDUAL USERS, THEIR GUESTS AND VENDORS HAVE A POSITIVE EXPERIENCE USING THE SERVICES. NOTWITHSTANDING OUR EFFORTS TO THIS GOAL, VENDORS AND INDIVIDUALS ARE STILL HUMAN BEINGS AND ACCORDINGLY WE CANNOT GUARANTEE OR REPRESENT THE SUITABILITY, RELIABILITY OR ACCURACY OF EITHER VENDORS OR INDIVIDUALS. THIS DISCLAIMER ALSO DISCLAIMS THE AND MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, OR ACCURACY OF, THE VENDOR’ PROVISION OR PERFORMANCE OF FOOD PREPARATION SERVICES. AS SUCH THE PROVISION AND QUALITY OF MEALS REQUESTED THROUGH THE USE OF THE SERVICES IS ENTIRELY THE RESPONSIBILITY OF THE APPLICABLE VENDOR. QULINARY MAKES NO WARRANTY, AND UNDER NO CIRCUMSTANCE ACCEPTS LIABILITY IN CONNECTION WITH AND/OR ARISING FROM, VENDOR’S PREPARATION OF FOOD OR MEALS, ANY ACTS, ACTION, BEHAVIOR, CONDUCT, AND/OR NEGLIGENCE ON THE PART OF THE VENDOR.
THE FOREGOING DOES NOT AFFECT ANY IMPLIED WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW OR YOUR JURISDICTION SO THE THESE DISCLAIMERS AND EXCLUSIONS MAY THEREFORE NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Limitation on Liability
Qulinary does not assume any responsibility, or will be liable, for any damages to, or any viruses that may infect your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing this Services, or your downloading of any information or materials from this Services. IN NO EVENT WILL QULINARY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OFFICERS OR DIRECTORS OR SUCCESSORS OR ASSIGNS BE LIABLE TO YOU OR ANY ONE ELSE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, MEALS OBTAINED THROUGH THE SERVICES, ANY CONTENT ON THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. YOU SPECIFICALLY ACKNOWLEDGE THAT QULINARY SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR ANY CONTENT OR SERVICES THEREON, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICES. IN THE EVENT OF ANY PROBLEM WITH THE MEALS THAT YOU HAVE PURCHASED ON OR THROUGH THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS TO SEEK A REFUND FOR SUCH MEAL SERVICES. IN NO EVENT SHALL QULINARY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATOR OF (A) FIVE HUNDRED DOLLARS (US $500.00) OR (B) THE VALUE OF YOUR MONIES SPENT THROUGH THE SERVICES.
Assumption of Risk, Indemnification and Release
YOU (AS EITHER A VENDOR OR INDIVIDUAL USER), AND (IF APPLICABLE) ON BEHALF OF YOUR GUESTS OR OTHER PERSONS, KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES. YOU, ON BEHALF OF YOURSELF, AND (IF APPLICABLE) YOUR GUESTS AND OTHER PERSONS, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY QULINARY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR (OR, IN THE CASE OF INDIVIDUALS, YOUR GUESTS’) (I) ACCESS TO OR USE OF THE SERVICES OR CONTENT OR YOUR USER CONTENT, INCLUDING ANY DATA OR CONTENT TRANSMITTED OR RECEIVED BY YOU (II) MEAL ORDERS (OR, AS A VENDOR, YOUR PROVISION) OF FOOD SERVICES INCLUDING, WITHOUT LIMITATION, FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM THE PROVISION OF FOOD SERVICES, (III) VIOLATION OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, YOUR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES, (IV) CLAIMS THAT QULINARY VIOLATED ANY EMPLOYMENT LAWS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO WORKER CLASSIFICATION, OVERTIME, AND MEAL AND REST BREAKS, (V) CLAIMS, OR ANY DECISION BY A COURT, ARBITRATOR, OR GOVERNMENT AGENCY, THAT QULINARY IS OBLIGATED TO PAY ANY WITHHOLDING TAXES, SOCIAL SECURITY, UNEMPLOYMENT OR DISABILITY INSURANCE OR SIMILAR ITEMS IN CONNECTION WITH ANY PAYMENT RECEIVED BY YOU UNDER THE TERMS, (VI) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY RIGHT OF PRIVACY OR INTELLECTUAL PROPERTY RIGHTS, (VII) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION, (VIII) YOUR WILLFUL MISCONDUCT; OR (IX) ANY OTHER PARTY’S ACCESS AND USE OF THE SERVICE WITH YOUR UNIQUE USERNAME, PASSWORD OR OTHER APPROPRIATE SECURITY CODE.
California Civil Code Section 1542. THE RELEASES CONTAINED WITHIN THESE TERMS, INCLUDING IN THIS SECTION AND THE SECTION ENTITLED ‘DISPUTE RESOLUTION’, ARE INTENDED TO APPLY TO ALL CLAIMS NOT NOW KNOWN OR SUSPECTED TO EXIST WITH THE INTENT OF WAIVING THE EFFECT OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR,” AS WELL AS OTHER LAWS REQUIRING PRESENT INTENT TO RELEASE FUTURE UNKNOWN CLAIMS.”
You or we may suspend or terminate your account or your use of this Services at any time, for any reason or for no reason. You are personally liable for any Meal Contract placed or charges incurred through your account prior to termination. We may also block your access to our Services in the event that (a) you breach these Terms; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
Vendor should check with their personal insurers to determine whether and to what extent their personal insurance policies provide coverage for food preparation services and other activities associated with providing food preparation services. Personal insurance policies may not cover Vendor’ bodily injury or property damage in connection with such services.
Disputes with Individuals/Vendors and Release of Qulinary
In the event that you (or, as Individual your guests or (if applicable) on behalf of your guests) have a dispute with a Vendor or another Individual or one or more other guests, or Vendor, as applicable (each, an “Other Party”), you, and (if applicable) on behalf of your guests agree that because Qulinary is not providing food preparation services, but is a technology platform, that you will address such dispute directly with the Other Party in question, and not Qulinary. You, and (if applicable) on behalf of your guests release Qulinary (and our officers, directors, agents, investors, subsidiaries, and employees) (collectively “Releasees”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. If such a dispute arises, Qulinary may, in its sole discretion, facilitate communication between you and the Other Party in connection with such dispute. If such a dispute is unable to be resolved between you and the Other Party, Qulinary may, in its sole discretion, and where feasible, intervene in such dispute and take any actions we deem appropriate.
Governing Law and Jurisdiction
All matters relating to the Services and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM QULINARY.
You and Qulinary agree that any dispute between you and Qulinary arising out of or relating to these Terms or the breach, violation, use, non-performance, enforcement, or validity of the Services (collectively “Disputes”) shall be settled by binding arbitration, except that each party each of use reserves the right to: (i) seek injunctive or other equitable relief by a court of competent jurisdiction to prevent the actual or threatened infringement or violation of a party’s intellectual property rights. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Dispute Resolution Process and Arbitration
Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU, AND (IF APPLICABLE) ON BEHALF OF YOUR GUESTS AND YOUR OTHER PERSONS, AGREE THAT, BY ENTERING INTO THESE TERMS, YOU, AND (IF APPLICABLE) YOUR GUESTS AND YOUR OTHER PERSONS, AND QULINARY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Changes to Dispute Resolution Provisions
Neither Qulinary nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, food preparation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
General and Waiver and Severability
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms and all incorporated agreements may be automatically assigned by Qulinary in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. These Terms set forth the entire understanding and agreement between us with respect to the subject matter hereof. The following terms shall survive termination of these Terms: “Vendor Representations and Warranties” “Payments,” “Termination”, “Data Backup”, “Limitation of Liability”, “Assumption of Risk and Indemnity and Release,” and “Governing Law and Arbitration”, shall survive any termination or expiration of this Agreement.
Your Comments and Concerns
The Services are operated by Qulinary, Inc. If you do not understand any of the foregoing Terms or if you have any questions or comments, we invite you to contact our customer support department by email at [email protected]
All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy in the manner and by the means set forth therein.
All other feedback, comments, requests for technical support and other communications relating to the Services should be directed to: [email protected]