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THE FOLLOWING DESCRIBES THE TERMS ON WHICH EATNOW.COM
OFFERS YOU ACCESS TO OUR SERVICES.
Welcome to the user agreement (the "Agreement"
or "User Agreement") for EatNow.com.
If you reside outside of the United States, then
membership to our website is not currently available.
This Agreement describes the terms and conditions
applicable to your use of our services available
under the domain and sub-domains of www.EatNow.com
(the "Site"). If you do not agree to
be bound by the terms and conditions of this Agreement,
do not use or access our services.
If you have any questions, please refer to our
Help
Desk and Frequently
Asked Questions.
You must read, agree with and accept all of the
terms and conditions contained in this User Agreement
and the Privacy Policy, which include those terms
and conditions expressly set out below and those
incorporated by reference, before you may become
a member of EatNow.com. We strongly recommend
that, as you read this User Agreement, you also
access and read the information contained in the
other pages and websites referred to in this document,
as they may contain further terms and conditions
that apply to you as an EatNow.com user.
We may amend this Agreement at any time by posting
the amended terms on the Site. Except as stated
below, all amended terms shall automatically be
effective 30 days after they are initially posted
on the Site. You should review these terms and
conditions periodically to become familiar with
any amendments. Your continued use of the Site
after the effective date of an amendment shall
constitute your acceptance of such amendment.
This Agreement is effective upon acceptance in
registration for new registering users.
1. Membership Eligibility
Our services are available only to, and may only
be used by individuals who can form legally binding
contracts under applicable law. Without limiting
the foregoing, our services are not available
to children (persons under the age of 18) or to
temporarily or indefinitely suspended EatNow.com
members. If you are a under the age of 18, you
can use this service only in conjunction with,
and under the supervision of your parents or legal
guardians. If you do not qualify, please do not
use our Site. Further, your EatNow.com account
(including feedback) and User ID may not be transferred
or sold to another party. If you are registering
as a business entity, you represent that you have
the authority to bind the entity to this Agreement.
2. Fees and Services
Joining and making purchases through EatNow.com
is free. You are responsible for paying all fees
associated with using ordering through our service
and the Site and all applicable taxes.
3.0 EatNow.com is a venue.
3.1 EatNow.com is an online service connecting
consumers looking to purchase foods and beverages
to restaurants. Users may purchase any food and
beverage items offered by the restaurant through
EatNow.com. We are not involved in the actual
transaction between buyers and sellers (restaurants)
and shall have no liability or responsibility
for any transaction. As a result, we have no control
over the quality of the items advertised, the
truth or accuracy of the listings or the ability
of sellers to sell items. We cannot ensure or
guarantee that a seller will actually complete
a transaction. Consequently, we do not transfer
legal ownership of items from the seller to the
buyer, and nothing in this agreement shall modify
the governing provisions of New York Code Com.
Code § 2-401 and Uniform Com. Code §
2-401(2), under which legal ownership of an item
is transferred upon physical delivery of the item
to the buyer by the seller.
3.2 Identity Verification. We use many techniques
to verify the accuracy of the information our
users provide us when they register on the Site.
However, because user verification on the Internet
is difficult, EatNow.com cannot and does not confirm
each user's purported identity.
3.3 Release. Because we are a venue, in the event
that you have a dispute with one or more sellers,
you release EatNow.com (and our owners, officers,
directors, agents, subsidiaries, joint ventures
and employees) from claims, demands and damages
(actual and 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 disputes. If you are
a California resident, you waive California Civil
Code §1542, which says: "A general release
does not extend to claims which the creditor does
not know or suspect to exist in his favor at the
time of executing the release, which if known
by him must have materially affected his settlement
with the debtor." Other states may require
similar waivers and you hereby waive the same.
3.4 Information Control. We do not control the
information provided by other users or sellers
that is made available through our system. You
may find other user's information to be offensive,
harmful, inaccurate, or deceptive. Please use
caution, common sense, and practice safe trading
when using the Site. Please note that there are
also risks of dealing with underage persons or
people acting under false pretense. By using this
Site, you agree to accept such risks and EatNow.com
is not responsible for the acts or omissions of
users on the Site.
4 Fraud. Without limiting any other remedies,
EatNow.com may suspend or terminate your account
if we in our sole discretion suspect that you
(by conviction, settlement, insurance or investigation,
or otherwise) have engaged in fraudulent activity
in connection with the Site or any other practices
that are offensive, harmful, inaccurate or deceptive.
5. Your Information
5.1 Definition. "Your Information" is
defined as any information you provide to us in
the registration process, in any public message
area (i.e., the feedback area) or through any
email feature. You are solely responsible for
Your Information, and we act as a passive conduit
for your online distribution and publication of
Your Information.
5.2 Restricted Activities. Your Information (or
any items listed) and your activities on the Site
shall not: (a) be false, inaccurate or misleading;
(b) be fraudulent (c) infringe any third party's
copyright, patent, trademark, trade secret or
other proprietary rights or rights of publicity
or privacy; (d) violate any law, statute, ordinance
or regulation (including, but not limited to,
those governing export control, consumer protection,
unfair competition, antidiscrimination or false
advertising); (e) be defamatory, trade libelous,
unlawfully threatening or unlawfully harassing;
(f) be obscene or contain child pornography or,
if otherwise adult in nature or harmful to minors,
shall be posted only in the Mature Audiences section
and shall be distributed only to people legally
permitted to receive such content; (g) contain
any viruses, Trojan horses, worms, time bombs,
cancelbots, easter eggs or other computer programming
routines that may damage, detrimentally interfere
with, surreptitiously intercept or expropriate
any system, data or personal information; (h)
create liability for us or cause us to lose (in
whole or in part) the services of our ISPs or
other suppliers
5.3 License. To enable EatNow.com to use the information
you supply us with, so that we are not violating
any rights you might have in that information,
you agree to grant us a non-exclusive, worldwide,
perpetual, irrevocable, royalty-free, sublicensable
(through multiple tiers) right to exercise the
copyright, publicity, and database rights (but
no other rights) you have in Your Information,
in any media now known or not currently known,
with respect to Your Information. EatNow.com will
only use Your Information in accordance with our
Privacy Policy.
6. Access and Interference
The Site contains robot exclusion headers. Much
of the information on the Site is updated on a
real time basis and is proprietary or is licensed
to EatNow.com by our users or third parties. You
agree that you will not use any robot, spider,
scraper or other automated means to access the
Site for any purpose without our express written
permission. 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) copy, reproduce, modify, create derivative
works from, distribute or publicly display any
content (except for Your Information) from the
Site without the prior expressed written permission
of EatNow and the appropriate third party, as
applicable; (iii) interfere or attempt to interfere
with the proper working of the Site or any activities
conducted on the Site; or (iv) bypass our robot
exclusion headers or other measures we may use
to prevent or restrict access to the Site.
7. Breach
Without limiting other remedies, we may limit
your activity, warn our community of your actions,
issue a warning, temporarily suspend, indefinitely
suspend or terminate your membership, refuse to
provide our services to you or take such other
action we deem reasonable in our sole discretion
if: (a) you breach this Agreement or the documents
it incorporates by reference; (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.
8. Privacy
We do not sell or rent your personal information
to third parties for their marketing purposes
without your explicit consent and we only use
your information as described in the Privacy Policy.
We view protection of users' privacy as a very
important community principle. We understand clearly
that you and your information is one of our most
important assets. We store and process your information
on computers located in the United States that
are protected by physical as well as technological
security devices. We use third parties to verify
and certify our privacy principles. If you object
to your Information being transferred or used
in this way please do not use our services.
9. No Warranty
WE, OUR OWNER, SUBSIDIARIES, OFFICERS, DIRECTORS,
EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEB SITE
AND SERVICES "AS IS" AND WITHOUT ANY
WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY.
WE, OUR OWNER, SUBSIDIARIES, OFFICERS, DIRECTORS,
EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM
ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Some states do not allow the disclaimer of implied
warranties, so the foregoing disclaimer may not
apply to you. This warranty gives you specific
legal rights and you may also have other legal
rights that vary from state to state.
10. Liability Limit
IN NO EVENT SHALL WE, OUR OWNER, SUBSIDIARIES,
OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS
BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH OUR SITE, OUR SERVICES OR THIS
AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF OUR OWNER,
SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES,
AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN
ANY CIRCUMSTANCE IS LIMITED TO $50. Some States
do not allow the exclusion or limitation of incidental
or consequential damages, so the above limitation
or exclusion may not apply to you.
11. Indemnity
You agree to indemnify and hold us and (as applicable)
our owner, subsidiaries, affiliates, officers,
directors, agents, and employees, harmless from
any claim or demand, including reasonable attorneys'
fees, made by any person due to or arising out
of your breach of this Agreement or the documents
it incorporates by reference, or your violation
of any law or the rights of such person.
12. Legal Compliance
You shall comply with all applicable domestic
and international laws, statutes, ordinances and
regulations regarding your use of our service
and your purchase, solicitation of offers to purchase,
and sale of items.
13. No Agency
You and EatNow.com are independent contractors,
and no agency, partnership, joint venture, employee-employer
or franchiser-franchisee relationship is intended
or created by this Agreement.
14. Notices
Except as explicitly stated otherwise, any notices
shall be given by postal mail to EatNow.com Attn:
Legal Department 3741 Walnut Street P.O. Box 33-,
Philadelphia, PA 19104 (in the case of EatNow)
or to the email address you provide to EatNow.com
during the registration process (in your case).
Alternatively, we may give you notice by certified
mail, postage prepaid and return receipt requested,
to the address provided to EatNow.com during the
registration process. In such case, notice shall
be deemed given 3 days after the date of mailing.
15. Resolution of Disputes
In the event a dispute arises between you and
EatNow.com, our goal is to provide you with a
neutral and cost effective means of resolving
the dispute quickly. Accordingly, you and EatNow.com
agree that any claim or controversy at law or
equity that arises out of this Agreement or our
services ("Claims") shall be resolved
in accordance with one of the subsections below
or as otherwise mutually agreed upon in writing
by the parties. Before resorting to these alternatives,
we strongly encourage you to first contact us
directly to seek a resolution and we will consider
reasonable requests to resolve the dispute through
alternative dispute resolution procedures, such
as mediation, as an alternative to litigation.
15.1 Binding Arbitration. For any Claim (excluding
Claims for injunctive or other equitable relief)
where the total amount of the award sought is
less than $10,000, you or EatNow.com may elect
to resolve the dispute through binding arbitration
conducted by telephone, on-line and/or based
solely upon written submissions where no in-person
appearance is required. In such cases, the arbitration
shall be administered by the American Arbitration
Association or JAMS in accordance with their
applicable rules, or any other established ADR
provider mutually agreed upon by the parties.
Any judgment on the award rendered by the arbitrator
may be entered in any court having jurisdiction
thereof.
15.2 Court. Alternatively, any Claim may be
adjudicated by a court of competent jurisdiction
located in Philadelphia, PA or where the defendant
is located (in our case Philadelphia, PA and
in your case your home address or principal
place of business). You and EatNow.com agree
to submit to the personal jurisdiction of the
courts located within the Philadelphia, PA.
15.3 Alternative Dispute Resolution. Alternatively,
EatNow.com will consider use of other alternative
forms of dispute resolution, such as binding
arbitration to be held in Philadelphia, PA or
another location mutually agreed upon by the
parties. All Claims (excluding requests for
injunctive or equitable relief) between the
parties must be resolved using the dispute resolution
mechanism that is selected in accordance with
this Section by the first party to file a Claim.
Should either party file an action contrary
to this Section 16, the other party may recover
attorneys' fees and costs up to $1,000, provided
that the party seeking the award has notified
the other party in writing of the improperly
filed Claim, and the other party has failed
to withdraw the Claim.
16. Additional Terms
The following policies are incorporated into
this Agreement by reference and provide additional
terms and conditions related to specific services
offered on the:
Privacy Policy: [click
here]
Questions/Answers: [click
here]
Each of these policies may be changed from time
to time and are effective immediately after
we post the changes on the Site, except for
the Privacy Policy for which we will provide
you with thirty days prior notice. In addition,
when using particular services on the Site,
you agree that you are subject to any posted
policies or rules applicable to services you
use through the Site, which may be posted from
time to time. All such posted policies or rules
are hereby incorporated by reference into this
Agreement.
17. General
This Agreement shall be governed in all respects
by the laws of the State of Pennsylvania as
such laws are applied to agreements entered
into and to be performed entirely within Pennsylvania
between Pennsylvania residents. We do not guarantee
continuous, uninterrupted or secure access to
our services, and operation of the Site may
be interfered with by numerous factors outside
of our control. If any provision of this Agreement
is held to be invalid or unenforceable, such
provision shall be struck and the remaining
provisions shall be enforced. You agree that
this Agreement and all incorporated agreements
may be automatically assigned by EatNow.com
in accordance with Section 16 "Notices",
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.
This Agreement sets forth the entire understanding
and agreement between us with respect to the
subject matter hereof. Sections 2 (Fees and
Services) with respect to fees owed for our
services, 3.4 (Release), 6.3 (License), 7 (Access
and Interference), 12 (Liability Limit), 13
(Indemnity) and 16 (Resolution of Disputes)
shall survive any termination or expiration
of this Agreement.
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