Consumer Terms of Use
These Terms of Use (the “Agreement”) constitute a contract between you and us that governs your access and use of the Sites. What does that mean? It means that by accessing and/or using the Sites or our services through the Sites, or by clicking a button or checking a box marked “I Agree” (or something similar), you agree to all the terms and conditions of this Agreement. If you do not agree, do not use the Sites. As used in this Agreement, “you” means any visitor, user, or other person who accesses our Sites, whether or not such person registered for an Account (as defined below). Unless otherwise agreed by NomNom2go in a separate written agreement with you or your authorized representative, the Sites are made available solely for your personal, non-commercial use.
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH NomNom2go THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND NomNom2go ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST NomNom2go. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
ABOUT NomNom2go
NomNom2go connects hungry diners with local takeout restaurants. You may order food through the Sites to be delivered from particular restaurants or other purveyors of food in cities throughout the United States and other territories where NomNom2go provides such services.
NomNom2go is not a restaurant or food preparation entity. The restaurants and other food purveyors available on our Sites (collectively, the “restaurants”) operate independently of NomNom2go. The restaurants are required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale, and marketing of food, including, without limitation, food preparation and safety and menu disclosure. NomNom2go is not liable or responsible for the restaurants' food preparation or safety and does not verify their compliance with all applicable laws. In addition, NomNom2go does not guarantee the quality of what the restaurants or other food purveyors sell, nor does it guarantee the services provided by them, including, without limitation, in those cases where they provide the delivery services or engage another third party delivery service. NomNom2go does not independently verify, and is not liable for, representations made by restaurants regarding their food, including, without limitation, any menu- or restaurant-level descriptors or disclosures. Some deliveries are provided by NomNom2go's network of independent delivery service providers (“DSPs”). DSPs have entered into agreements with NomNom2go, which require them to comply with all applicable federal, state, and local laws, rules and regulations, including, without limitation, traffic laws, requirements of the applicable Department of Motor Vehicles, and applicable insurance requirements. NomNom2go shall not be liable or responsible for any delivery services provided by DSPs or any subcontractors of DSPs, or any errors or misrepresentations made by any of them.
USING NomNom2go
You may only create and hold one account on each Site for your personal use (an “Account”). You may have another account if you are using the Site as part of a corporate account created for business purposes pursuant to a separate agreement with NomNom2go. In consideration of the use of the Sites and the services contained therein, you agree that you are able to create a binding legal obligation with NomNom2go, and you also agree to: (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current, and complete.
The Sites may permit you to make purchases without an Account or without logging in to your Account. If you make a purchase in this manner, we may create an Account for you based on the information provide to us in connection with the transaction (e.g., your name, phone number, email address, and other transaction information). If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Sites, and your parent or legal guardian must read and agree to this Agreement prior to your using the Sites. Notwithstanding the foregoing, you are not authorized to use the Sites if you are under the age of 13. If you are using the Sites on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization.
If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if NomNom2go has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, NomNom2go has the right to block your current or future use of the Sites (or any portion thereof) and/or terminate this Agreement with you. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future account credits or promotional offers and any other forms of unredeemed value in or associated with your Account without prior notice to you.
You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, any password for Facebook, Google, or other third party login. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify NomNom2go of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. NomNom2go will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.
PAYMENT AND OUR CREDIT POLICY
Certain features of the Sites, including, without limitation, the placing of orders, may require you to make certain payments. When paid by you, these payments are final and non-refundable, unless otherwise determined by NomNom2go. NomNom2go, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged.
NomNom2go will charge, and you authorize NomNom2go to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, NomNom2go may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. In the event NomNom2go advances payment for any of your orders placed via the Sites (e.g., if you sign up for a corporate account), NomNom2go may separately send you invoices for payment of those advanced amounts. In the event that you fail to pay such invoices within thirty (30) days of the date of such invoice (the “Payment Due Date”), you grant NomNom2go the right, but not the obligation, to charge the credit card you provide with your Account at any time after any Payment Due Date, unless prohibited by law.
NomNom2go reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the services at any time. NomNom2go may also, in its sole discretion, make promotional offers with different features and different rates to any or all of our customers. Unless made to you, these promotional offers will have no bearing on your obligation to pay the amounts charged.
The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
OUR MATERIALS AND LICENSE TO YOU
With the exception of User Content (defined below), the Sites and everything on them, from text to photos to videos to graphics and software, (collectively, the "Materials") are owned by or licensed to NomNom2go. The Sites and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Sites and Materials and except for the trademarks, service marks, logos and trade names of other companies that are displayed on the Sites and Materials, all trademarks, service marks, logos, trade dress, and trade names are proprietary to NomNom2go,Please be advised that NomNom2go enforces its intellectual property rights to the fullest extent of the law.
Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Sites and/or the Materials for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the Sites and/or the Materials. Any other use of the Sites and/or the Materials is strictly prohibited. The Sites and the Materials may not be copied, republished, uploaded, posted, transmitted, distributed in any way, and/or modified without our express written permission. Nothing contained on the Sites and/or Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third party proprietary content on the Sites without the express written permission of NomNom2go or the appropriate third party owner, as applicable. Any rights not expressly granted herein are reserved by NomNom2go and NomNom2go’s licensors.
You may not rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Sites and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Sites and its related services. You are not authorized to download any content from the Sites, including, without limitation, the Materials, and if you do, NomNom2go will not be responsible in any way for any damage to your computer system or loss of data that results from such download.
YOUR CONTENT AND CONDUCT
I. User Conduct
By accessing the Sites, you agree:
to comply with all applicable laws in connection with your use of the Sites, including, without limitation, laws regarding online conduct and submission of acceptable User Content;
not to use the Sites or the services or submit content to the Sites if you are under the age of 13;
not to use the Sites to purchase alcohol unless you and the alcohol recipient are 21 or older and present a valid photo identification(s) verifying your or the recipient’s age at the time of alcohol delivery;
not to access the Sites or services using a third party's account/registration without the express consent of the account - holder and not to attempt to impersonate another user or person;
not to attempt, through any means, to gain unauthorized access to any part of the Sites and/or any service, other account, computer system, and/or network connected to any NomNom2go server and not to otherwise use the Sites or services in any manner that could damage, disable, overburden, and/or impair any NomNom2go server, or the network(s) connected to any NomNom2go server, and/or interfere with any other party's use and enjoyment of the Sites;
not to advertise to, or solicit, any user, restaurant, or other business to buy or sell any products or services, or use any information obtained from the Sites or the NomNom2go services in order to contact, solicit, or advertise or sell to any user, restaurant, or other business, in each case, unless specifically authorized in writing by NomNom2go;
not to deep-link or frame to the Sites and/or access the Sites manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the Sites and/or any Materials and/or other content on the Sites, unless specifically authorized in writing by NomNom2go;
not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the Sites;
not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the Site or Materials;
not to create restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Sites;
not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
not to harass, annoy, intimidate, or threaten any NomNom2go employees, contractors, or agents engaged in providing any portion of NomNom2go's services;
not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (including, without limitation, by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any User Content (as defined below) or from any portion of the Sites or NomNom2go's services;
not to disrupt, interfere with, or otherwise harm or violate the security of the Sites, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Sites or affiliated or linked sites (including, without limitation, those of our restaurant partners); and
not to use the Sites for any illegal purposes or in any way otherwise inconsistent with any and all applicable laws, rules, and regulations.
You agree to comply with the above user conduct, and agree not assist or permit any person in engaging in any conduct that does not comply with the above user conduct. Further, you agree that the consequences of commercial use or re-publication of User Content or Materials from the Sites or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that NomNom2go will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.
II. Content You Provide
NomNom2go may provide you with interactive opportunities (i) on the Sites, including, without limitation, features such as user ratings and reviews, saved favorites, liked items and bookmarked restaurants, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (collectively, "Interactive Areas"). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to NomNom2go through the Sites or otherwise in connection with your use of our services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login (“User Content”). User Content includes, without limitation, textual, visual, or audio content and information, whether transmitted via the Sites, SMS or MMS message, or otherwise.
III. Use of Your Content
You grant NomNom2go an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use User Content in connection with NomNom2go's or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”) without notification to and/or approval by you. You further grant NomNom2go a license to use your username and/or other user profile information, including, without limitation, your ratings history and how long you have been a NomNom2go diner, to attribute User Content to you in connection with the Uses, if we choose to do so, again without notification to and/or approval by you. Further, if you provide any suggestions, input, or other feedback relating to the Sites or the services we provide (collectively, the “Feedback”), NomNom2go shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant NomNom2go a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.
User Content transmitted to certain parts of the Sites, including, without limitation, restaurant pages and certain Interactive Areas, may be posted in public areas on our Sites, including, without limitation, in a compilation format, and as such will be publicly visible and accessible. You further understand and agree that you may be exposed to third party User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. NomNom2go and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the "Released Parties") will not be responsible for, and you hereby expressly release the Released Parties from, any and all liability for the action of any and all third parties with respect to your User Content, or for any damages you allege to incur as a result of or relating to any third party User Content.
IV. Conduct within Interactive Areas
By transmitting User Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Sites. We expect your cooperation in upholding our standards. You are responsible for all of your User Content. You agree not to provide any User Content that:
is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable; has a commercial, political, or religious purpose;
is false, misleading, and/or not written in good faith;
infringes any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
is illegal and/or promotes illegal activity;
contains unauthorized advertising and/or solicits users to a business other than those on the Sites; and/or
is intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Sites or other websites.
We do our best to encourage civility and discourage disruptive communication on the Sites. We also do our best to discourage communications that incite others to violate our standards. NomNom2go may monitor any and all use of the Sites, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the Sites in a manner intended to protect our property and rights and to facilitate the proper functioning of the Sites. If any User Content or conduct on our Sites violates our standards, or any other terms and conditions of this Agreement; or interferes with other peoples' enjoyment of the Materials or our Sites; or is inappropriate in our judgment; we reserve the right, in our sole discretion, to change, delete or remove, in part or in full, any such User Content or Materials, and we further reserve the right to terminate or suspend access to any Interactive Areas or any Sites. NomNom2go will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with User Content.
V. Ratings and Reviews
The Sites and other Interactive Areas may allow you to rate (“Ratings”) and post reviews (“Reviews”) of restaurants and other businesses. Such Ratings and Reviews are considered User Content and are governed by the terms and conditions of this Agreement, including, without limitation, your agreement regarding your use of Interactive Areas and the Sites' standards of conduct. Ratings and Reviews are not endorsed by NomNom2go, and do not represent the views of NomNom2go or of any affiliate or partner of NomNom2go. NomNom2go does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had first-hand experience with the restaurant within the 7-day period prior to your review; (2) you may not have a proprietary or other affiliation with either the restaurant or any of its competitors; (3) you may not draw any legal conclusions regarding the restaurants' products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the Sites may be removed or excluded by us without notice.
COMMUNICATIONS & TEXT MESSAGES
By voluntarily providing your cell phone number to NomNom2go, you agree that NomNom2go may contact you by telephone, SMS, or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand that such messages may be sent using an automatic telephone dialing system. You may unsubscribe from receiving text messages from NomNom2go at any time. To revoke your consent to receiving SMS or MMS messages from NomNom2go, please follow the unsubscribe procedures described below.
Diners placing orders through the Sites may receive two or more order status messages from NomNom2go about each order. To unsubscribe from order-related messages, just reply "STOP" to the number sending the message. To resubscribe, text “START” to the same number from the phone number associated with your account. If you need assistance, text “HELP”. Please note that unsubscribing from one Site will not automatically unsubscribe you from another Site. For example, if you unsubscribe from NomNom2go order-related messages, you may still receive order-related messages when you place an order through Seamless, unless you also unsubscribe from Seamless order-related messages.
Additionally, diners may receive messages from NomNom2go following receipt of a completed order soliciting feedback and/or other information relating to the order. You may unsubscribe from all such feedback messages by replying "STOP" to the number sending the feedback messages. To resubscribe, text "START" to the number sending the feedback messages using the phone number associated with your account. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from NomNom2go, the restaurant, or your delivery person regarding your order or its delivery unless you also text "STOP" to the number sending the order-related messages, and even in such event, you may still receive individual texts from the restaurant or your delivery person to enable successful delivery of your order.
You may also receive text messages in response to certain Customer Care requests. To unsubscribe from Customer Care messages, just reply to the message by texting “STOP” to the number sending the message.
If you unsubscribe from receiving text messages from NomNom2go through the process described above, you may continue to receive text messages for a short period while NomNom2go processes your request(s). If you change or deactivate the phone number you provided to NomNom2go, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive NomNom2go’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.
Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g. T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages. If you require assistance, please call our Customer Care team at 1-877-585-7878.
ADDITIONAL TERMS FOR MOBILE APPLICATIONS
We may make available software to access NomNom2go’s websites, technology platforms, and related online and mobile services via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. NomNom2go does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. NomNom2go hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on a mobile device owned or leased solely by you, for your personal use. You acknowledge that NomNom2go may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of any Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree to timely upgrade the Mobile Application in the event there is no automatic update. You further agree that the terms and conditions of this Agreement will apply to all upgrades to the Mobile Applications. Any third party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and NomNom2go or its third party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. NomNom2go reserves all rights not expressly granted under this Agreement with respect to the Mobile Applications and otherwise. If any Mobile Application is being acquired on behalf of the United States Government, then the following provision applies: The Mobile Application will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR § 227.7202 and FAR § 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Sites and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originate in the United States, and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Sites.
The following applies to any Mobile Application you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and NomNom2go, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to NomNom2go as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to NomNom2go as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, NomNom2go, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and NomNom2go acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software .
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and NomNom2go only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) NomNom2go, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to NomNom2go’s Google-Sourced Software.
DISCLAIMER
THE SITES, THE MATERIALS, AND ALL OTHER CONTENT ON THE SITES ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE MATERIALS AND ALL OTHER CONTENT ON THE SITES, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NomNom2go DOES NOT REPRESENT OR WARRANT THAT THE SITES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE SITES WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE SITES, THE MATERIALS, AND/OR OTHER CONTENT ON THE SITES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. NomNom2go DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE SITES, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT NomNom2go) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE SITES, THE MATERIALS, AND/OR OTHER CONTENT ON THE SITES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
NomNom2go SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND NomNom2go'S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NomNom2go IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
NomNom2go RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. NomNom2go DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL NomNom2go BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF NomNom2go HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, OR NEGLIGENCE ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE SITES. NomNom2go ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SITES. NomNom2go ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SITES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS SITE, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL NomNom2go'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO NomNom2go OR A NomNom2go RESTAURANT PARTNER, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE FAIR AND REASONABLE. IF YOU ARE DISSATISFIED WITH THE SITE OR DO NOT AGREE TO ANY PROVISIONS OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE, EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION.
THIRD PARTY LINKS
The Sites may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Websites"). NomNom2go does not review, monitor, operate and/or control the Third Party Websites and NomNom2go makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, NomNom2go is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. NomNom2go reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
ADDITIONAL TERMS
Your use of the Sites is subject to any and all additional terms, policies, rules, or guidelines applicable to NomNom2go's services or certain features of the Sites that we may post or link to on the Sites (collectively, the "Additional Terms"), such as end-user license agreements, or other agreements or rules applicable to particular features, promotions, or content on the Sites, including, without limitation, the Google Maps/Google Earth Additional Terms of Service located at https://maps.google.com/help/terms_maps.html and the Google Privacy Policy located at https://www.google.com/intl/ALL/policies/privacy/index.html. All such Additional Terms are hereby incorporated into this Agreement by reference.
PRIVACY POLICY
The terms and conditions of the Privacy Policy located at https://www.NomNom2go.com/legal/privacy-policy are incorporated into this Agreement by reference.
COPYRIGHT POLICY
NomNom2go respects the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Sites or a website through which our services may be accessed in a way that constitutes copyright infringement, please provide NomNom2go's Copyright Agent (as set forth below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):
A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the Sites;
Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
Please send this notification to our copyright agent at: NomNom2go Holdings Inc., Attention: Copyright Agent, 111 West Washington Street, Suite 2100, Chicago, Illinois 60602.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying NomNom2go and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with NomNom2go’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, NomNom2go has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. NomNom2go may also in its sole discretion limit access to the Sites and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
TERMINATION AND VIOLATIONS OF THE AGREEMENT
Your rights under this Agreement will terminate automatically without notice if you fail to comply with any provision of this Agreement. Further, NomNom2go reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Sites and/or services offered on or through the Sites (or any part thereof), including but not limited to the Sites' features, look and feel, and functional elements and related services. We will have no liability whatsoever on account of any change to the Sites or any suspension or termination of your access to or use of the Sites. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the Sites and services provided herein.
Upon termination of this Agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the Sites; and (ii) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” and (vii) “Waiver and Severability.”
NomNom2go reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the Sites from a particular account, device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.
CHANGES TO THE AGREEMENT
We may change this Agreement from time to time and without prior notice. If we make a change to this Agreement, it will be effective as soon as we post it and the most current version of this Agreement will always be posted under the "Terms of Use" link available on our Sites ("Updated Terms"). If we make a material change to the Agreement, we may notify you. You agree that you will review this Agreement periodically. By continuing to access and/or use the Sites after we post Updated Terms, you agree to be bound by the Updated Terms, and if you do not agree to the Updated Terms, you will stop using the Sites. Any disputes under this Agreement will be governed by the version of Agreement in effect at the time of the first event which gave rise to the dispute.
GOVERNING LAW
You acknowledge and agree that your access to and/or use of the Sites, the Materials, and other content on the Sites is subject to all applicable international, federal, state, and local laws and regulations. The terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
DISPUTE RESOLUTION
I. Arbitration and Class Action Waiver.
You agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement, or that in any way relate to your use of the Sites, the Materials, and/or other content on the Sites, shall be submitted exclusively to binding arbitration, except that each party retains the right to bring an individual action in small claims court and 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 a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Arbitration means that an arbitrator and not a judge or jury will decide the claim. Rights to prehearing exchange of information and appeals may also be limited in arbitration. You acknowledge and agree that you and NomNom2go are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and NomNom2go otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms of Use. You further acknowledge that any claim arising under this Agreement must be brought within one year of its accrual or it will be waived.
II. Arbitration Rules
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section.
III. Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/sites/default/files/Demand%20for%20Arbitration%20Consumer%20Arbitration%20Rules.pdf and a separate affidavit for waiver of fees for California residents only at https://www.adr.org/sites/default/files/AAA%20Affidavit%20for%20Waiver%20of%20Fees%20Notice%20California%20Consumers.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which you reside and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
IV. Arbitration Location and Procedure
Unless you and NomNom2go otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and NomNom2go submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
V. Arbitrator's Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide the relief warranted by the claimant's individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law. NomNom2go will not seek, and hereby waives, all rights NomNom2go may have under applicable law to recover attorneys' fees and expenses if NomNom2go prevails in arbitration.
VI. Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $25,000, NomNom2go will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
VII. Changes
NomNom2go reserves the right to change this "Dispute Resolution" section, but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if NomNom2go changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Sites after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing NomNom2go written notice of such rejection by mail or hand delivery to: NomNom2go, Attn: Dispute Resolutions, 111 West Washington Street, Suite 2100, Chicago, Illinois 60602, or by email from the email address associated with your account to: info@NomNom2go.com, within 30 days of the date such change became effective, as indicated in the "Effective" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and NomNom2go in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
WAIVER AND SEVERABILITY
Any waiver by NomNom2go of any provision of this Agreement must be in writing. If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable. The remainder of this Agreement shall continue to be enforceable and valid according to terms contained herein.
ENTIRE AGREEMENT
This Agreement, together with any amendments and any additional agreements you may enter into with NomNom2go in connection with the Sites and the services hereunder, shall constitute the entire agreement between you and NomNom2go concerning the Sites and the services hereunder.
CONTACT
If you have any questions regarding this Agreement, please visit our “Contact Us” page for answers and our contact information.
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Independent Contractor Terms Of Service Agreement - United States
NomNom2go
This Agreement (“Agreement”) is made and entered into by and between you, the undersigned contractor (“CONTRACTOR”), an independent contractor engaged in the business of performing the services contemplated by this Agreement, and NomNom2go LLC. (“NomNom2go” or “COMPANY”). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Contracted Services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XI, AS IT REQUIRES THE PARTIES (UNLESS YOU VALIDLY OPT OUT OF ARBITRATION, AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XI, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
RECITALS
NomNom2go is a company that provides an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers (“NomNom2go platform” or “platform”). NomNom2go’s software permits registered users to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, NomNom2go software notifies contractors that a delivery opportunity is available and the NomNom2go software facilitates completion of the delivery. NomNom2go is not a restaurant, food delivery service, or food preparation business.
CONTRACTOR is an independent provider of delivery and other services, authorized to conduct the services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR possesses all equipment and personnel necessary to perform the delivery and any other services contemplated by this Agreement in accordance with applicable laws. CONTRACTOR desires to enter into this Agreement for the right to receive delivery opportunities made available through NomNom2go'S platform. CONTRACTOR understands and expressly agrees that he/she is not an employee of NomNom2go or any restaurant, other business or consumer and that he/she is providing delivery and other services on behalf of him/herself and his/her business, not on behalf of NomNom2go. CONTRACTOR understands (i) he/she is free to select those times he/she wishes to be available on the platform to receive delivery opportunities; (ii) he/she is free to accept or reject the opportunities transmitted through the NomNom2go platform by consumers, and can make such decisions to maximize his/her opportunity to profit; and (iii) he/she has the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed.
In consideration of the above, as well as the mutual promises described herein, NomNom2go and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
This Agreement governs the relationship between NomNom2go and CONTRACTOR, and establishes the parties’ respective rights and obligations. In exchange for the promises contained in this Agreement, CONTRACTOR shall have the right and obligation to perform the “Contracted Services” as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shall guarantee CONTRACTOR any particular volume of business for any particular time period.
CONTRACTOR shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered by NomNom2go. However, once a Delivery Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications and the terms laid out in this Agreement,
II. CONTRACTOR'S OPERATIONS
CONTRACTOR represents that he/she operates an independently established enterprise that provides delivery and other services, and that he/she satisfies all legal requirements and has all necessary licenses and permits necessary to perform any services contemplated by this Agreement. As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate his/her business and how to perform the Contracted Services.
CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. NomNom2go shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection.
As an independent business enterprise, CONTRACTOR retains the right to perform services (whether delivery services or other services) for others and to hold him/herself out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with others and nothing in this Agreement shall prevent CONTRACTOR or NomNom2go from doing business with others. NomNom2go does not have the right to restrict CONTRACTOR from performing services for other businesses, customers or consumers at any time, even if such business directly competes with NomNom2go, and even during the time CONTRACTOR is logged into the NomNom2go platform. CONTRACTOR’s right to compete with NomNom2go, or perform services for business that compete with NomNom2go, will survive even after termination of this Agreement.
CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from NomNom2go as a condition of doing business with NomNom2go or entering into this Agreement.
CONTRACTOR agrees to immediately notify NomNom2go in writing at www.NomNom2go.com/help/ if CONTRACTOR's right to control the manner or method he/she uses to perform services differs from the terms contemplated in this Section.
III. CONTRACTED SERVICES
From time to time, the NomNom2go platform will notify CONTRACTOR of the opportunity to complete deliveries from restaurants or other businesses to consumers in accordance with orders placed by consumers through the NomNom2go platform (each of these is referred to as a "Delivery Opportunity"). For each Delivery Opportunity accepted by CONTRACTOR ("Contracted Service"), CONTRACTOR agrees to retrieve the orders from restaurants or other businesses on time and safely, ensure the order is accurately filled, and complete delivery orders to consumers in a safe and timely fashion. CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer, not NomNom2go, and represent the end result desired, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel, from time to time, a Contracted Service when, in the exercise of CONTRACTOR's reasonable discretion and business judgment, it is appropriate to do so. Notwithstanding the foregoing, CONTRACTOR agrees to maintain both a customer rating and a completion rate found here as of the date this Agreement becomes effective. Failure to satisfy this obligation constitutes a material breach of this Agreement, and NomNom2go shall have the right to terminate this Agreement and/or deactivate CONTRACTOR'S account.
CONTRACTOR acknowledges that NomNom2go has discretion as to which, if any, Delivery Opportunity to offer, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
CONTRACTOR acknowledges that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from NomNom2go’S business, which is to provide an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers.
CONTRACTOR authorizes NomNom2go, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or restaurant or other business to assist CONTRACTOR, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall NomNom2go be authorized to control the manner or means by which CONTRACTOR performs delivery services or other services contemplated under this agreement. This includes, but is not limited to, the following:
NomNom2go does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
CONTRACTOR does not have a supervisor or any individual at NomNom2go to whom they report.
CONTRACTOR is not required to use any signage or other designation of NomNom2go on his or her vehicle or person at any point in their use of the platform to perform the Contracted Services.
NomNom2go has no control over CONTRACTOR’s personal appearance.
CONTRACTOR does not receive regular performance evaluations by NomNom2go.
CONTRACTOR may use whatever payment method he/she chooses to purchase items to be delivered to consumers, including, but not limited to CONTRACTOR's personal credit or debit card, cash or a prepaid card. CONTRACTOR may use, for CONTRACTOR's convenience, the prepaid card solely for purchasing items to be delivered to consumers. If CONTRACTOR chooses to use his/her personal credit or debit card or cash, CONTRACTOR shall invoice NomNom2go on a weekly basis and NomNom2go agrees to pay all invoices within 10 days of receipt.
In the event CONTRACTOR fails to fully perform any Contracted Service (a "Service Failure") due to CONTRACTOR's action or omission, CONTRACTOR shall forfeit all or part of the agreed upon fee for that service. If CONTRACTOR disputes responsibility for a Service Failure, the dispute shall be resolved pursuant to the "Payment Disputes" provision below.
CONTRACTOR agrees to immediately notify NomNom2go in writing by submitting a Support inquiry through https://help.NomNom2go.com/consumers/s/contactsupport if CONTRACTOR's services or scope of work differ in any way from what is contemplated in this Section.
IV. RELATIONSHIP OF PARTIES
The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement.
NomNom2go shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in NomNom2go have been inserted solely for the safety of consumers and other CONTRACTORS using the NomNom2go platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
NomNom2go shall report all payments made to CONTRACTOR on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to CONTRACTOR qualify. CONTRACTOR agrees to report all such payments and any cash gratuities to the appropriate federal, state and local taxing authorities.
V. PAYMENT FOR SERVICES
Unless notified otherwise by NomNom2go in writing or except as provided herein, CONTRACTOR will receive payment per accurate Contracted Service completed in an amount consistent with the publicly provided pay model, which you can view here. From time to time, NomNom2go may offer opportunities for CONTRACTOR to earn more money for performing Contracted Services at specified times or in specified locations. Nothing prevents the parties from negotiating a different rate of pay, and CONTRACTOR is free to accept or deny any such opportunities to earn different rates of pay.
NomNom2go’s online credit card software may permit consumers to add a gratuity to be paid to CONTRACTOR, and consumers can also pay a gratuity to CONTRACTOR in cash. CONTRACTOR shall retain 100% of any gratuity paid by the consumer, whether by cash or credit card. NomNom2go acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR.
NomNom2go will process payments made by consumers and transmit to CONTRACTOR. Payments for all deliveries completed in a given week will be transferred via direct deposit on no less than a weekly basis unless it notifies CONTRACTOR otherwise in writing.
Notwithstanding the terms of Section V(1) – (3), fulfillment orders placed directly with merchants rather than through the App or NomNom2go.com (“Fulfillment Orders”) may be subject to a different payment model. More information regarding Fulfillment Orders may be found here. Nothing prevents the parties from negotiating a different rate of pay for a Fulfillment Order, and the CONTRACTOR is free to accept or reject Fulfillment Order opportunities. As with all Delivery Opportunities, CONTRACTOR shall retain 100% of any gratuity paid by the consumer for a Fulfillment Order. NomNom2go's software may not always include an option to add gratuity for Fulfillment Orders; however, consumers can pay a gratuity to CONTRACTOR in cash.
From time to time, NomNom2go may offer various promotions or referral programs. CONTRACTOR agrees that he or she will not manipulate or abuse the referral programs or promotions by, among other things: (a) tampering with the location feature on his or her mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or, (c) creating multiple Driver or consumer accounts. CONTRACTOR understands that engaging in this type of manipulation or abuse constitutes a material breach of this Agreement and may lead to deactivation of his or her account.
VI. PAYMENT DISPUTES
CONTRACTOR's Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in NomNom2go’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, restaurant or other business, CONTRACTOR, and any other party with information relevant to the dispute. NomNom2go shall make the initial determination as to whether a Service Failure was the result of CONTRACTOR's action/omission. CONTRACTOR shall have the right to challenge NomNom2go’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify NomNom2go in writing at www.NomNom2go.com/help/ of the challenge and provide NomNom2go the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of his/her challenge.
NomNom2go’s Failure: In the event NomNom2go fails to remit payment in a timely or accurate manner, CONTRACTOR shall have the right to seek proper payment by any legal means contemplated by this Agreement and, should CONTRACTOR prevail, shall be entitled to recover reasonable costs incurred in pursuing proper payment, provided, however, CONTRACTOR shall first inform NomNom2go in writing at www.NomNom2go.com/help/ of the failure and provide a reasonable opportunity to cure it.
VII. EQUIPMENT AND EXPENSES
CONTRACTOR represents that he/she has or can lawfully acquire all equipment, including vehicles and food hot bags ("Equipment") necessary for performing Contracted Services, and CONTRACTOR is solely responsible for ensuring that the vehicle used conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability.
CONTRACTOR agrees that he/she is responsible for all costs and expenses arising from CONTRACTOR's performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR's Personnel (defined below) and Equipment. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to its Equipment.
VIII. PERSONNEL
In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the NomNom2go platform, pass a background check administered by a third-party vendor, subject to CONTRACTOR's lawful consent. CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, the background check requirements that CONTRACTOR must meet in order to perform Contracted Services. To the extent CONTRACTOR furnishes his/her own employees or subcontractors (collectively "Personnel"), CONTRACTOR shall be solely responsible for the direction and control of the Personnel it uses to perform all Contracted Services.
CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to his/her Personnel for work performed in relation to this Agreement, including all wages, benefits and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this Agreement. NomNom2go shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR's Personnel, nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to CONTRACTOR or his/her Personnel. Neither CONTRACTOR nor his/her Personnel shall receive any wages, including vacation pay or holiday pay, from NomNom2go, nor shall they participate in or receive any other benefits, if any, available to NomNom2go's employees.
Unless mandated by law, NomNom2go shall have no authority to withhold state or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of CONTRACTOR or his/her Personnel.
CONTRACTOR and his/her Personnel shall not be required to wear a uniform or other clothing of any type bearing NomNom2go's name or logo.
If CONTRACTOR uses the services of any Personnel to perform the Contracted Services, CONTRACTOR's Personnel must satisfy and comply with all of the terms of this Agreement, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Personnel. A copy of such written agreement must be provided to NomNom2go at least 7 days in advance of such Personnel performing the Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR's compliance with the terms of this Agreement.
IX. INSURANCE
CONTRACTOR agrees, as a condition of doing business with NomNom2go, that during the term of this Agreement, CONTRACTOR will maintain current insurance, in amounts and of types required by law to provide the Contracted Services, at his/her own expense. CONTRACTOR acknowledges that failure to secure or maintain satisfactory insurance coverage shall be deemed a material breach of this Agreement and shall result in the termination of the Agreement and the loss of CONTRACTOR's right to receive Delivery Opportunities.
NOTIFICATION OF COVERAGE: CONTRACTOR agrees to deliver to NomNom2go, upon request, current certificates of insurance as proof of coverage. CONTRACTOR agrees to provide updated certificates each time CONTRACTOR purchases, renews, or alters CONTRACTOR's insurance coverage. CONTRACTOR agrees to give NomNom2go at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement.
WORKERS' COMPENSATION/OCCUPATIONAL ACCIDENT INSURANCE: CONTRACTOR agrees that CONTRACTOR will maintain sufficient insurance to cover any risks or claims arising out of or related to CONTRACTOR’S relationship with NomNom2go, including workers’ compensation insurance where required by law. CONTRACTOR acknowledges and understands that CONTRACTOR will not be eligible for workers’ compensation benefits through NomNom2go and is instead responsible for maintaining CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance. CONTRACTOR’S maintenance of CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance will not disqualify CONTRACTOR from participating in the Occupational Accident Insurance Policy for Drivers, which NomNom2go may make available to CONTRACTOR.
X. INDEMNITY
NomNom2go agrees to indemnify, protect and hold harmless CONTRACTOR from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly from NomNom2go's actions arranging and offering the Contracted Services to CONTRACTOR.
CONTRACTOR agrees to indemnify, protect and hold harmless NomNom2go, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of CONTRACTOR and/or his/her Personnel arising from the performance of delivery services under this Agreement, including personal injury or death to any person (including to CONTRACTOR and/or his/her Personnel), as well as any liability arising from CONTRACTOR's failure to comply with the terms of this Agreement. CONTRACTOR's obligations hereunder shall include the cost of defense, including attorneys' fees, as well as the payment of any final judgment rendered against or settlement agreed upon by NomNom2go or its parent, subsidiary and/or affiliated companies.
CONTRACTOR agrees to indemnify, protect and hold harmless NomNom2go, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to CONTRACTOR and CONTRACTOR's Personnel.
CONTRACTOR shall be responsible for, indemnify and hold harmless NomNom2go, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from all costs of CONTRACTOR's business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
XI. MUTUAL ARBITRATION PROVISION
CONTRACTOR and NomNom2go mutually agree to this Mutual Arbitration Provision, which is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) and shall apply to any and all disputes arising out of or relating to this Agreement, CONTRACTOR’s classification as an independent contractor, CONTRACTOR’s provision of Contracted Services to consumers, the payments received by CONTRACTOR for providing services to consumers, the termination of this Agreement, and all other aspects of CONTRACTOR's relationship with NomNom2go, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans With Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Federal Credit Reporting Act (or its state or local equivalents), Telephone Consumer Protection Act (or its state or local equivalents), or Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local claims arising out of or relating to CONTRACTOR’s relationship or the termination of that relationship with NomNom2go. The parties expressly agree that this Agreement shall be governed by the FAA even in the event CONTRACTOR and/or NomNom2go are otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. If for any reason the FAA does not apply, the state law governing arbitration agreements in the state in which the CONTRACTOR operates shall apply.
If either CONTRACTOR or NomNom2go wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought and (4) the amount in controversy. Any demand for arbitration by CONTRACTOR must be delivered to General Counsel, 901 Market Street, 6th Floor, San Francisco, California 94103.
Arbitration Class Action Waiver. CONTRACTOR and NomNom2go mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action—including but not limited to actions brought pursuant to the Private Attorney General Act (“PAGA”), California Labor Code section 2699 et seq., and any request seeking a public injunction—and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action, or to award relief to anyone but the individual in arbitration (“Arbitration Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the CPR Rules, as defined below, any claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Arbitration Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Arbitration Class Action Waiver that is enforceable shall be enforced in arbitration. All other disputes with respect to whether this Mutual Arbitration Provision is unenforceable, unconscionable, applicable, valid, void or voidable, and all disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. For sake of clarification only, nothing in this paragraph shall be construed to prohibit settlements on a class-wide, collective, and/or representative basis.
CONTRACTOR agrees and acknowledges that entering into this Mutual Arbitration Provision does not change CONTRACTOR’s status as an independent contractor in fact and in law, that CONTRACTOR is not an employee of NomNom2go or its customers and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
Any arbitration shall be governed by the CPR Administered Arbitration Rules and, when applicable, the CPR Employment-Related Mass-Claims Protocol (together, the “CPR Rules”) of the International Institute for Conflict Prevention & Resolution, except as follows:
a. The arbitration shall be heard by one arbitrator (the “Arbitrator”) selected in accordance with the CPR Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute.
b. If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 45 miles of CONTRACTOR’s residence as of the effective date of this Agreement.
c. The CPR fee schedule will apply with the following exceptions. Unless applicable law provides otherwise, in the event that NomNom2go and CONTRACTOR have agreed to this Mutual Arbitration Provision, NomNom2go and CONTRACTOR shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings, but CONTRACTOR’s share of such fees and costs will not exceed the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. NomNom2go shall pay any costs uniquely associated with arbitration, such as payment of the fees of the Arbitrator, as well as room rental.
d. The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
e. Except as provided in the Arbitration Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
f. The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
g. The Arbitrator's decision or award shall be in writing with findings of fact and conclusions of law.
h. The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information. Subject to the discretion of the Arbitrator or agreement of the parties, any person having a direct interest in the arbitration may attend the arbitration hearing. The Arbitrator may exclude any non-party from any part of the hearing.
i. Either CONTRACTOR or NomNom2go may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
Nothing in this Mutual Arbitration Provision prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. NomNom2go will not retaliate against CONTRACTOR for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. Disputes between the parties that may not be subject to predispute arbitration agreement, including as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Mutual Arbitration Provision.
The CPR Rules may be found at www.cpradr.org or by searching for “CPR Administered Arbitration Rules” and “CPR Employment-Related Mass-Claims Protocol” using a service such as www.google.com or www.bing.com or by asking NomNom2go’s General Counsel to provide a copy.
CONTRACTOR’s Right to Opt Out of Mutual Arbitration Provision. Arbitration is not a mandatory condition of CONTRACTOR’s contractual relationship with NomNom2go, and therefore CONTRACTOR may submit a statement notifying NomNom2go that CONTRACTOR wishes to opt out and not be subject to this MUTUAL ARBITRATION PROVISION. In order to opt out, CONTRACTOR must notify NomNom2go in writing of CONTRACTOR's intention to opt out by sending a letter, by First Class Mail, to General Counsel, 901 Market Street, Suite 600, San Francisco, CA, 94103. Any attempt to opt out by email will be ineffective. The letter must state CONTRACTOR's intention to opt out. In order to be effective, CONTRACTOR's opt out letter must be postmarked within 30 days of the effective date of this Agreement. The letter must be signed by CONTRACTOR himself/herself, and not by any agent or representative of CONTRACTOR. The letter may opt out, at most, only one CONTRACTOR, and letters that purport to opt out multiple CONTRACTORS will not be effective as to any. No CONTRACTOR (or his or her agent or representative) may effectuate an opt out on behalf of other CONTRACTORS. If CONTRACTOR opts out as provided in this paragraph, CONTRACTOR will not be subject to any adverse action from NomNom2go as a consequence of that decision and he/she may pursue available legal remedies without regard to this Mutual Arbitration Provision. If CONTRACTOR does not opt out within 30 days of the effective date of this Agreement, CONTRACTOR and NomNom2go shall be deemed to have agreed to this Mutual Arbitration Provision. CONTRACTOR has the right to consult with counsel of CONTRACTOR's choice concerning this Mutual Arbitration Provision (or any other provision of this Agreement).
This Mutual Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes covered by this Mutual Arbitration Provision. In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
XII. LITIGATION CLASS ACTION WAIVER
To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section XI, CONTRACTOR agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because CONTRACTOR opted out of the Mutual Arbitration Provision or any other reason, will be conducted solely on an individual basis, and CONTRACTOR agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which CONTRACTOR acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). CONTRACTOR further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.
XIII. TERMINATION OF AGREEMENT
CONTRACTOR may terminate this Agreement upon seven (7) days written notice. NomNom2go may terminate this Agreement and deactivate CONTRACTOR’S Driverr account only for the reasons set forth in the NomNom2go Deactivation Policy, or for a material breach of this Agreement. Notwithstanding any other provision in this Agreement, NomNom2go reserves the right to modify the Deactivation Policy if, in NomNom2go’s good faith and reasonable discretion, it is necessary to do so for the safe and/or effective operation of the NomNom2go platform. NomNom2go shall provide notice of any such changes to CONTRACTOR via e-mail. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the NomNom2go platform following NomNom2go’s e-mail notice of such modifications. Nothing will prevent CONTRACTOR from attempting to negotiate an exemption from any modification to the Deactivation Policy.
CONTRACTOR’s and NomNom2go’s obligations and rights arising under the Mutual Arbitration Provision of this Agreement shall survive termination of this Agreement. Notwithstanding any other provision in this Agreement, the Deactivation Policy is subject to change; such changes shall be effective and binding on the parties upon NomNom2go’S provision of notice to CONTRACTOR via e-mail.
XIV. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
This Agreement shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed or amended in any respect, unless in writing and signed by both parties. Before accepting any modifications, alterations, changes or amendments, CONTRACTOR shall have the right to discuss any proposed changes with NomNom2go and consider whether to continue his/her contractual relationship with NomNom2go. This Agreement supersedes any prior contract between the parties. To the extent NomNom2go’s consumer facing Terms and Conditions Agreement (or updated consumer facing Terms and Conditions Agreement, if applicable) is inconsistent or conflicts with this Agreement, this Agreement controls. However, the decision to opt-out of the Mutual Arbitration Provision in this Agreement does not affect the enforceability of any arbitration agreement in the consumer facing Terms and Conditions Agreement to which Contractor may be bound (and vice versa). This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that NomNom2go may assign its rights and obligations under this Agreement to an affiliate of NomNom2go or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to NomNom2go shall be deemed to include such successor(s).
The failure of NomNom2go or CONTRACTOR in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
XV. MISCELLANEOUS
CAPTIONS: Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
SEVERABILITY Clause: Except as specifically provided in Section XI, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
GOVERNING LAW: Except for the Mutual Arbitration Provision above, which is governed by the Federal Arbitration Act, the choice of law for interpretation of this Agreement, and the right of the parties hereunder, as well as substantive interpretation of claims asserted pursuant to Section XI, shall be the rules of law of the state in which CONTRACTOR performs the majority of the services covered by this Agreement.
NOTICE AND OPPORTUNITY TO CURE: CONTRACTOR agrees to notify NomNom2go in writing at https://www.NomNom2go.com/help/ of any breach or perceived breach of this Agreement, of any claim arising out of or related to this Agreement, or of any claim that CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this Agreement, including but not limited to the terms in Sections II (Contractor’s Operations) and III (Contracted Services), or if the relationship of the parties differs from the terms contemplated in Section IV (Relationship of Parties).
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RESTAURANT OWNER TERMS OF SERVICE AGREEMENT
This Agreement (“Agreement”) governs the terms of participation with NomNom2go, LLC. made and entered into as of the date of electronic submission/and or agreeing to the Terms of Service on the NomNom2go Restaurant app, by and between NomNom2go, LLC. (Service Provider) and your restaurant (Restaurant), or your liquor store (Liquor Store), or your brewery (Brewery) with respect to the following facts:
A.NomNom2go, LLC., operating online at http://www.nomnom2go.com, and as an Apple and Android application will act as a disclosed dual agent advertising, selling, and collecting revenue on behalf of my restaurant.
B. Service Provider (NomNom2go, LLC.) assumes no liability associated with the sale of food and drink provided by restaurant, or liquor store, or brewery without limitation, computation and payment of sales tax to the appropriate taxing authority, compliance with appropriate health codes with respect to preparation of food, and all matters concerning quality and condition of the food and drink.
C. The parties want to enter an agreement whereby Service Provider (NomNom2go, LLC.) would be encouraged to introduce customers interested in purchasing the products of my restaurant for a fee.
Restaurant, or liquor store, or brewery owner agrees to pay NomNom2go, LLC. a “service fee” for bringing business, advertising, printing of tourist pamphlets, and social media posts to my restaurant, liquor store or brewery. Further, restaurant, or liquor store, or brewery owner agrees that said “service fee” will be paid in the form of a discount applied to all orders consummated by www.NomNom2go.com or, or the application for Apple or Android, or NomNom2go, LLC at the time of purchase.
WHEREFORE, for good and valuable consideration, the parties agree as follows:
1. SERVICE TERM: Commencing on the date hereof, and continuing until one or both parties desires to terminate this agreement.
2. ACCOUNT SET-UP: To be completed yourself online, or on the app or by a sales representative or authorized agent or partner of NomNom2go, LLC.
3. SERVICE FEE: SERVICE FEE AMOUNTS TO 18.5% (0.185) OF THE RETAIL PRICE OF MENU ITEMS, NOT INCLUDING TAX, OF ALL ORDERS CONSUMMATED THROUGH NomNom2go, LLC. OR http://www.NomNom2go.com OR ON THENomNom2go APPLE OR ANDROID APPLICATION. FEE PAID AT THE TIME OF PURCHASE IN THE FORM OF A DISCOUNT DEDUCTED FROM ORDER TOTAL.
4. PAYMENT: Payments will be done electronically via direct deposit less direct deposit fee. Please allow 2 weeks for initial payment.
5. SALES TAX: Sales tax will be collected on behalf of the restaurants or liquor stores, or brewery and will be be itemized weekly and be part of the weekly direct deposit payout.
6. LIQUOR STORE, AND BREWERY PARTNERS: NomNom2go will collect information on customer orders in accordance with Colorado laws. Includes: Customer Name, age, order log, delivery address, and driver log to confirm age, and identification of ordering customer. This log will be emailed weekly to the Liquor store or Brewery. A separate approved agreement with the liquor store or brewear, NomNom2go LLC, and the Division of Liquor/Tobacco Enforcement of Colorado is needed for liquor deliveries.
7. PROMOTIONAL MATERIALS: For a mutually rewarding relationship, NomNom2go.com strongly encourages restaurant owners to solicit the availability of delivery services.NomNom2go, LLC. furnishes promotional materials at no cost to participating restaurants. Promotional materials include: Vanity cards (full color business cards), Point of Sale (POS) Signage, and 3.5” x 10” vinyl decals.
8. Indemnity.
Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (a) the negligence or willful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding NomNom2go and Delivery Partners to the extent they are your agents pursuant to an Order Form) in their performance of this Agreement; (b) any claims that the Indemnifying Party breached its representations and warranties in this Agreement; or (c) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Company Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to any harm resulting from your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, except to the extent such harm was directly caused by the gross negligence or willful misconduct of Company or its employees, agents or Delivery Partners. Each Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
9.LIMITATION OF LIABILITY: EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, LIMITATION OF LIABILITY IN NO EVENT WILL NomNom2go BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (EVEN IF NomNom2go HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH NomNom2go FOR RESTAURANTS AND FOR LIQUOR STORES AND BREWERIES. NomNom2go ASSUMES NO RESPONSIBILITY AND WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR DEVICE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES. NomNom2go ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED FROM NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL NomNom2go'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 (A) THE AMOUNT PAID BY YOU TO NomNom2go, OR (B) $100 (WHICHEVER IS LESS). YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. IF YOU ARE DISSATISFIED WITH NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES OR DO NOT AGREE TO ANY PROVISIONS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES.
10. SECTION HEADINGS: The headings of paragraphs, sections and other subdivisions of this agreement are for convenient reference only. They shall not be used in any way to govern, limit, modify, construe this agreement or any part or provision thereof or otherwise be given any legal effect.
11. ENTIRE AGREEMENT: This agreement contains the full and complete understanding and agreement between the parties with respect to the within subject matter, and supersedes all other agreements between the parties whether written or oral relating thereto, and may not be modified or amended except by written instrument executed by both of the parties hereto. This agreement shall in all respects be subject to the laws of the State of Colorado applicable to agreements executed and wholly performed within such State.
These Terms of Use (the “Agreement”) constitute a contract between you and us that governs your access and use of the Sites. What does that mean? It means that by accessing and/or using the Sites or our services through the Sites, or by clicking a button or checking a box marked “I Agree” (or something similar), you agree to all the terms and conditions of this Agreement. If you do not agree, do not use the Sites. As used in this Agreement, “you” means any visitor, user, or other person who accesses our Sites, whether or not such person registered for an Account (as defined below). Unless otherwise agreed by NomNom2go in a separate written agreement with you or your authorized representative, the Sites are made available solely for your personal, non-commercial use.
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH NomNom2go THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND NomNom2go ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST NomNom2go. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
ABOUT NomNom2go
NomNom2go connects hungry diners with local takeout restaurants. You may order food through the Sites to be delivered from particular restaurants or other purveyors of food in cities throughout the United States and other territories where NomNom2go provides such services.
NomNom2go is not a restaurant or food preparation entity. The restaurants and other food purveyors available on our Sites (collectively, the “restaurants”) operate independently of NomNom2go. The restaurants are required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale, and marketing of food, including, without limitation, food preparation and safety and menu disclosure. NomNom2go is not liable or responsible for the restaurants' food preparation or safety and does not verify their compliance with all applicable laws. In addition, NomNom2go does not guarantee the quality of what the restaurants or other food purveyors sell, nor does it guarantee the services provided by them, including, without limitation, in those cases where they provide the delivery services or engage another third party delivery service. NomNom2go does not independently verify, and is not liable for, representations made by restaurants regarding their food, including, without limitation, any menu- or restaurant-level descriptors or disclosures. Some deliveries are provided by NomNom2go's network of independent delivery service providers (“DSPs”). DSPs have entered into agreements with NomNom2go, which require them to comply with all applicable federal, state, and local laws, rules and regulations, including, without limitation, traffic laws, requirements of the applicable Department of Motor Vehicles, and applicable insurance requirements. NomNom2go shall not be liable or responsible for any delivery services provided by DSPs or any subcontractors of DSPs, or any errors or misrepresentations made by any of them.
USING NomNom2go
You may only create and hold one account on each Site for your personal use (an “Account”). You may have another account if you are using the Site as part of a corporate account created for business purposes pursuant to a separate agreement with NomNom2go. In consideration of the use of the Sites and the services contained therein, you agree that you are able to create a binding legal obligation with NomNom2go, and you also agree to: (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current, and complete.
The Sites may permit you to make purchases without an Account or without logging in to your Account. If you make a purchase in this manner, we may create an Account for you based on the information provide to us in connection with the transaction (e.g., your name, phone number, email address, and other transaction information). If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Sites, and your parent or legal guardian must read and agree to this Agreement prior to your using the Sites. Notwithstanding the foregoing, you are not authorized to use the Sites if you are under the age of 13. If you are using the Sites on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that organization.
If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if NomNom2go has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, NomNom2go has the right to block your current or future use of the Sites (or any portion thereof) and/or terminate this Agreement with you. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future account credits or promotional offers and any other forms of unredeemed value in or associated with your Account without prior notice to you.
You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, any password for Facebook, Google, or other third party login. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify NomNom2go of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. NomNom2go will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.
PAYMENT AND OUR CREDIT POLICY
Certain features of the Sites, including, without limitation, the placing of orders, may require you to make certain payments. When paid by you, these payments are final and non-refundable, unless otherwise determined by NomNom2go. NomNom2go, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged.
NomNom2go will charge, and you authorize NomNom2go to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, NomNom2go may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. In the event NomNom2go advances payment for any of your orders placed via the Sites (e.g., if you sign up for a corporate account), NomNom2go may separately send you invoices for payment of those advanced amounts. In the event that you fail to pay such invoices within thirty (30) days of the date of such invoice (the “Payment Due Date”), you grant NomNom2go the right, but not the obligation, to charge the credit card you provide with your Account at any time after any Payment Due Date, unless prohibited by law.
NomNom2go reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the services at any time. NomNom2go may also, in its sole discretion, make promotional offers with different features and different rates to any or all of our customers. Unless made to you, these promotional offers will have no bearing on your obligation to pay the amounts charged.
The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
OUR MATERIALS AND LICENSE TO YOU
With the exception of User Content (defined below), the Sites and everything on them, from text to photos to videos to graphics and software, (collectively, the "Materials") are owned by or licensed to NomNom2go. The Sites and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Sites and Materials and except for the trademarks, service marks, logos and trade names of other companies that are displayed on the Sites and Materials, all trademarks, service marks, logos, trade dress, and trade names are proprietary to NomNom2go,Please be advised that NomNom2go enforces its intellectual property rights to the fullest extent of the law.
Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Sites and/or the Materials for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the Sites and/or the Materials. Any other use of the Sites and/or the Materials is strictly prohibited. The Sites and the Materials may not be copied, republished, uploaded, posted, transmitted, distributed in any way, and/or modified without our express written permission. Nothing contained on the Sites and/or Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third party proprietary content on the Sites without the express written permission of NomNom2go or the appropriate third party owner, as applicable. Any rights not expressly granted herein are reserved by NomNom2go and NomNom2go’s licensors.
You may not rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Sites and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Sites and its related services. You are not authorized to download any content from the Sites, including, without limitation, the Materials, and if you do, NomNom2go will not be responsible in any way for any damage to your computer system or loss of data that results from such download.
YOUR CONTENT AND CONDUCT
I. User Conduct
By accessing the Sites, you agree:
to comply with all applicable laws in connection with your use of the Sites, including, without limitation, laws regarding online conduct and submission of acceptable User Content;
not to use the Sites or the services or submit content to the Sites if you are under the age of 13;
not to use the Sites to purchase alcohol unless you and the alcohol recipient are 21 or older and present a valid photo identification(s) verifying your or the recipient’s age at the time of alcohol delivery;
not to access the Sites or services using a third party's account/registration without the express consent of the account - holder and not to attempt to impersonate another user or person;
not to attempt, through any means, to gain unauthorized access to any part of the Sites and/or any service, other account, computer system, and/or network connected to any NomNom2go server and not to otherwise use the Sites or services in any manner that could damage, disable, overburden, and/or impair any NomNom2go server, or the network(s) connected to any NomNom2go server, and/or interfere with any other party's use and enjoyment of the Sites;
not to advertise to, or solicit, any user, restaurant, or other business to buy or sell any products or services, or use any information obtained from the Sites or the NomNom2go services in order to contact, solicit, or advertise or sell to any user, restaurant, or other business, in each case, unless specifically authorized in writing by NomNom2go;
not to deep-link or frame to the Sites and/or access the Sites manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the Sites and/or any Materials and/or other content on the Sites, unless specifically authorized in writing by NomNom2go;
not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the Sites;
not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the Site or Materials;
not to create restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Sites;
not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
not to harass, annoy, intimidate, or threaten any NomNom2go employees, contractors, or agents engaged in providing any portion of NomNom2go's services;
not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (including, without limitation, by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any User Content (as defined below) or from any portion of the Sites or NomNom2go's services;
not to disrupt, interfere with, or otherwise harm or violate the security of the Sites, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Sites or affiliated or linked sites (including, without limitation, those of our restaurant partners); and
not to use the Sites for any illegal purposes or in any way otherwise inconsistent with any and all applicable laws, rules, and regulations.
You agree to comply with the above user conduct, and agree not assist or permit any person in engaging in any conduct that does not comply with the above user conduct. Further, you agree that the consequences of commercial use or re-publication of User Content or Materials from the Sites or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that NomNom2go will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.
II. Content You Provide
NomNom2go may provide you with interactive opportunities (i) on the Sites, including, without limitation, features such as user ratings and reviews, saved favorites, liked items and bookmarked restaurants, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through text (“SMS”) or multimedia (“MMS”) messages (collectively, "Interactive Areas"). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to NomNom2go through the Sites or otherwise in connection with your use of our services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login (“User Content”). User Content includes, without limitation, textual, visual, or audio content and information, whether transmitted via the Sites, SMS or MMS message, or otherwise.
III. Use of Your Content
You grant NomNom2go an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use User Content in connection with NomNom2go's or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”) without notification to and/or approval by you. You further grant NomNom2go a license to use your username and/or other user profile information, including, without limitation, your ratings history and how long you have been a NomNom2go diner, to attribute User Content to you in connection with the Uses, if we choose to do so, again without notification to and/or approval by you. Further, if you provide any suggestions, input, or other feedback relating to the Sites or the services we provide (collectively, the “Feedback”), NomNom2go shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant NomNom2go a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.
User Content transmitted to certain parts of the Sites, including, without limitation, restaurant pages and certain Interactive Areas, may be posted in public areas on our Sites, including, without limitation, in a compilation format, and as such will be publicly visible and accessible. You further understand and agree that you may be exposed to third party User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. NomNom2go and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the "Released Parties") will not be responsible for, and you hereby expressly release the Released Parties from, any and all liability for the action of any and all third parties with respect to your User Content, or for any damages you allege to incur as a result of or relating to any third party User Content.
IV. Conduct within Interactive Areas
By transmitting User Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Sites. We expect your cooperation in upholding our standards. You are responsible for all of your User Content. You agree not to provide any User Content that:
is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable; has a commercial, political, or religious purpose;
is false, misleading, and/or not written in good faith;
infringes any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
is illegal and/or promotes illegal activity;
contains unauthorized advertising and/or solicits users to a business other than those on the Sites; and/or
is intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Sites or other websites.
We do our best to encourage civility and discourage disruptive communication on the Sites. We also do our best to discourage communications that incite others to violate our standards. NomNom2go may monitor any and all use of the Sites, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the Sites in a manner intended to protect our property and rights and to facilitate the proper functioning of the Sites. If any User Content or conduct on our Sites violates our standards, or any other terms and conditions of this Agreement; or interferes with other peoples' enjoyment of the Materials or our Sites; or is inappropriate in our judgment; we reserve the right, in our sole discretion, to change, delete or remove, in part or in full, any such User Content or Materials, and we further reserve the right to terminate or suspend access to any Interactive Areas or any Sites. NomNom2go will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with User Content.
V. Ratings and Reviews
The Sites and other Interactive Areas may allow you to rate (“Ratings”) and post reviews (“Reviews”) of restaurants and other businesses. Such Ratings and Reviews are considered User Content and are governed by the terms and conditions of this Agreement, including, without limitation, your agreement regarding your use of Interactive Areas and the Sites' standards of conduct. Ratings and Reviews are not endorsed by NomNom2go, and do not represent the views of NomNom2go or of any affiliate or partner of NomNom2go. NomNom2go does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other User Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had first-hand experience with the restaurant within the 7-day period prior to your review; (2) you may not have a proprietary or other affiliation with either the restaurant or any of its competitors; (3) you may not draw any legal conclusions regarding the restaurants' products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the Sites may be removed or excluded by us without notice.
COMMUNICATIONS & TEXT MESSAGES
By voluntarily providing your cell phone number to NomNom2go, you agree that NomNom2go may contact you by telephone, SMS, or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. You understand that such messages may be sent using an automatic telephone dialing system. You may unsubscribe from receiving text messages from NomNom2go at any time. To revoke your consent to receiving SMS or MMS messages from NomNom2go, please follow the unsubscribe procedures described below.
Diners placing orders through the Sites may receive two or more order status messages from NomNom2go about each order. To unsubscribe from order-related messages, just reply "STOP" to the number sending the message. To resubscribe, text “START” to the same number from the phone number associated with your account. If you need assistance, text “HELP”. Please note that unsubscribing from one Site will not automatically unsubscribe you from another Site. For example, if you unsubscribe from NomNom2go order-related messages, you may still receive order-related messages when you place an order through Seamless, unless you also unsubscribe from Seamless order-related messages.
Additionally, diners may receive messages from NomNom2go following receipt of a completed order soliciting feedback and/or other information relating to the order. You may unsubscribe from all such feedback messages by replying "STOP" to the number sending the feedback messages. To resubscribe, text "START" to the number sending the feedback messages using the phone number associated with your account. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from NomNom2go, the restaurant, or your delivery person regarding your order or its delivery unless you also text "STOP" to the number sending the order-related messages, and even in such event, you may still receive individual texts from the restaurant or your delivery person to enable successful delivery of your order.
You may also receive text messages in response to certain Customer Care requests. To unsubscribe from Customer Care messages, just reply to the message by texting “STOP” to the number sending the message.
If you unsubscribe from receiving text messages from NomNom2go through the process described above, you may continue to receive text messages for a short period while NomNom2go processes your request(s). If you change or deactivate the phone number you provided to NomNom2go, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive NomNom2go’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.
Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g. T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages. If you require assistance, please call our Customer Care team at 1-877-585-7878.
ADDITIONAL TERMS FOR MOBILE APPLICATIONS
We may make available software to access NomNom2go’s websites, technology platforms, and related online and mobile services via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. NomNom2go does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. NomNom2go hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on a mobile device owned or leased solely by you, for your personal use. You acknowledge that NomNom2go may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of any Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree to timely upgrade the Mobile Application in the event there is no automatic update. You further agree that the terms and conditions of this Agreement will apply to all upgrades to the Mobile Applications. Any third party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and NomNom2go or its third party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. NomNom2go reserves all rights not expressly granted under this Agreement with respect to the Mobile Applications and otherwise. If any Mobile Application is being acquired on behalf of the United States Government, then the following provision applies: The Mobile Application will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR § 227.7202 and FAR § 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Sites and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originate in the United States, and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Sites.
The following applies to any Mobile Application you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and NomNom2go, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to NomNom2go as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to NomNom2go as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, NomNom2go, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and NomNom2go acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software .
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and NomNom2go only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) NomNom2go, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to NomNom2go’s Google-Sourced Software.
DISCLAIMER
THE SITES, THE MATERIALS, AND ALL OTHER CONTENT ON THE SITES ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE MATERIALS AND ALL OTHER CONTENT ON THE SITES, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NomNom2go DOES NOT REPRESENT OR WARRANT THAT THE SITES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE SITES WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE SITES, THE MATERIALS, AND/OR OTHER CONTENT ON THE SITES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. NomNom2go DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE SITES, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT NomNom2go) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE SITES, THE MATERIALS, AND/OR OTHER CONTENT ON THE SITES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
NomNom2go SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND NomNom2go'S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NomNom2go IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
NomNom2go RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. NomNom2go DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL NomNom2go BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF NomNom2go HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, OR NEGLIGENCE ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE SITES. NomNom2go ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SITES. NomNom2go ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SITES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS SITE, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL NomNom2go'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO NomNom2go OR A NomNom2go RESTAURANT PARTNER, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE FAIR AND REASONABLE. IF YOU ARE DISSATISFIED WITH THE SITE OR DO NOT AGREE TO ANY PROVISIONS OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE, EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION.
THIRD PARTY LINKS
The Sites may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Websites"). NomNom2go does not review, monitor, operate and/or control the Third Party Websites and NomNom2go makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, NomNom2go is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. NomNom2go reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
ADDITIONAL TERMS
Your use of the Sites is subject to any and all additional terms, policies, rules, or guidelines applicable to NomNom2go's services or certain features of the Sites that we may post or link to on the Sites (collectively, the "Additional Terms"), such as end-user license agreements, or other agreements or rules applicable to particular features, promotions, or content on the Sites, including, without limitation, the Google Maps/Google Earth Additional Terms of Service located at https://maps.google.com/help/terms_maps.html and the Google Privacy Policy located at https://www.google.com/intl/ALL/policies/privacy/index.html. All such Additional Terms are hereby incorporated into this Agreement by reference.
PRIVACY POLICY
The terms and conditions of the Privacy Policy located at https://www.NomNom2go.com/legal/privacy-policy are incorporated into this Agreement by reference.
COPYRIGHT POLICY
NomNom2go respects the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Sites or a website through which our services may be accessed in a way that constitutes copyright infringement, please provide NomNom2go's Copyright Agent (as set forth below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):
A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the Sites;
Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
Please send this notification to our copyright agent at: NomNom2go Holdings Inc., Attention: Copyright Agent, 111 West Washington Street, Suite 2100, Chicago, Illinois 60602.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying NomNom2go and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with NomNom2go’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, NomNom2go has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. NomNom2go may also in its sole discretion limit access to the Sites and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
TERMINATION AND VIOLATIONS OF THE AGREEMENT
Your rights under this Agreement will terminate automatically without notice if you fail to comply with any provision of this Agreement. Further, NomNom2go reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Sites and/or services offered on or through the Sites (or any part thereof), including but not limited to the Sites' features, look and feel, and functional elements and related services. We will have no liability whatsoever on account of any change to the Sites or any suspension or termination of your access to or use of the Sites. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the Sites and services provided herein.
Upon termination of this Agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the Sites; and (ii) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” and (vii) “Waiver and Severability.”
NomNom2go reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the Sites from a particular account, device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.
CHANGES TO THE AGREEMENT
We may change this Agreement from time to time and without prior notice. If we make a change to this Agreement, it will be effective as soon as we post it and the most current version of this Agreement will always be posted under the "Terms of Use" link available on our Sites ("Updated Terms"). If we make a material change to the Agreement, we may notify you. You agree that you will review this Agreement periodically. By continuing to access and/or use the Sites after we post Updated Terms, you agree to be bound by the Updated Terms, and if you do not agree to the Updated Terms, you will stop using the Sites. Any disputes under this Agreement will be governed by the version of Agreement in effect at the time of the first event which gave rise to the dispute.
GOVERNING LAW
You acknowledge and agree that your access to and/or use of the Sites, the Materials, and other content on the Sites is subject to all applicable international, federal, state, and local laws and regulations. The terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
DISPUTE RESOLUTION
I. Arbitration and Class Action Waiver.
You agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement, or that in any way relate to your use of the Sites, the Materials, and/or other content on the Sites, shall be submitted exclusively to binding arbitration, except that each party retains the right to bring an individual action in small claims court and 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 a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Arbitration means that an arbitrator and not a judge or jury will decide the claim. Rights to prehearing exchange of information and appeals may also be limited in arbitration. You acknowledge and agree that you and NomNom2go are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and NomNom2go otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms of Use. You further acknowledge that any claim arising under this Agreement must be brought within one year of its accrual or it will be waived.
II. Arbitration Rules
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section.
III. Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/sites/default/files/Demand%20for%20Arbitration%20Consumer%20Arbitration%20Rules.pdf and a separate affidavit for waiver of fees for California residents only at https://www.adr.org/sites/default/files/AAA%20Affidavit%20for%20Waiver%20of%20Fees%20Notice%20California%20Consumers.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the county in which you reside and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
IV. Arbitration Location and Procedure
Unless you and NomNom2go otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and NomNom2go submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
V. Arbitrator's Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide the relief warranted by the claimant's individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law. NomNom2go will not seek, and hereby waives, all rights NomNom2go may have under applicable law to recover attorneys' fees and expenses if NomNom2go prevails in arbitration.
VI. Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $25,000, NomNom2go will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
VII. Changes
NomNom2go reserves the right to change this "Dispute Resolution" section, but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if NomNom2go changes this "Dispute Resolution" section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the Sites after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing NomNom2go written notice of such rejection by mail or hand delivery to: NomNom2go, Attn: Dispute Resolutions, 111 West Washington Street, Suite 2100, Chicago, Illinois 60602, or by email from the email address associated with your account to: info@NomNom2go.com, within 30 days of the date such change became effective, as indicated in the "Effective" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and NomNom2go in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).
WAIVER AND SEVERABILITY
Any waiver by NomNom2go of any provision of this Agreement must be in writing. If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable. The remainder of this Agreement shall continue to be enforceable and valid according to terms contained herein.
ENTIRE AGREEMENT
This Agreement, together with any amendments and any additional agreements you may enter into with NomNom2go in connection with the Sites and the services hereunder, shall constitute the entire agreement between you and NomNom2go concerning the Sites and the services hereunder.
CONTACT
If you have any questions regarding this Agreement, please visit our “Contact Us” page for answers and our contact information.
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Independent Contractor Terms Of Service Agreement - United States
NomNom2go
This Agreement (“Agreement”) is made and entered into by and between you, the undersigned contractor (“CONTRACTOR”), an independent contractor engaged in the business of performing the services contemplated by this Agreement, and NomNom2go LLC. (“NomNom2go” or “COMPANY”). CONTRACTOR may enter this Agreement either as an individual or as a corporate entity. This Agreement will become effective on the date it is accepted regardless of whether you are eligible to, or ever do, perform any Contracted Services.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION XI, AS IT REQUIRES THE PARTIES (UNLESS YOU VALIDLY OPT OUT OF ARBITRATION, AS PROVIDED BELOW) TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS, INCLUDING SECTION XI, AND HAVE TAKEN THE TIME AND SOUGHT ANY ASSISTANCE NEEDED TO COMPREHEND THE CONSEQUENCES OF ACCEPTING THIS AGREEMENT.
RECITALS
NomNom2go is a company that provides an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers (“NomNom2go platform” or “platform”). NomNom2go’s software permits registered users to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, NomNom2go software notifies contractors that a delivery opportunity is available and the NomNom2go software facilitates completion of the delivery. NomNom2go is not a restaurant, food delivery service, or food preparation business.
CONTRACTOR is an independent provider of delivery and other services, authorized to conduct the services contemplated by this Agreement in the geographic location(s) in which CONTRACTOR operates. CONTRACTOR possesses all equipment and personnel necessary to perform the delivery and any other services contemplated by this Agreement in accordance with applicable laws. CONTRACTOR desires to enter into this Agreement for the right to receive delivery opportunities made available through NomNom2go'S platform. CONTRACTOR understands and expressly agrees that he/she is not an employee of NomNom2go or any restaurant, other business or consumer and that he/she is providing delivery and other services on behalf of him/herself and his/her business, not on behalf of NomNom2go. CONTRACTOR understands (i) he/she is free to select those times he/she wishes to be available on the platform to receive delivery opportunities; (ii) he/she is free to accept or reject the opportunities transmitted through the NomNom2go platform by consumers, and can make such decisions to maximize his/her opportunity to profit; and (iii) he/she has the sole right to control the manner in which deliveries are performed and the means by which those deliveries are completed.
In consideration of the above, as well as the mutual promises described herein, NomNom2go and CONTRACTOR (collectively “the parties”) agree as follows:
I. PURPOSE OF THE AGREEMENT
This Agreement governs the relationship between NomNom2go and CONTRACTOR, and establishes the parties’ respective rights and obligations. In exchange for the promises contained in this Agreement, CONTRACTOR shall have the right and obligation to perform the “Contracted Services” as defined herein. However, nothing in this Agreement requires CONTRACTOR to perform any particular volume of Contracted Services during the term of this Agreement, and nothing in this Agreement shall guarantee CONTRACTOR any particular volume of business for any particular time period.
CONTRACTOR shall have no obligation to accept or perform any particular “Delivery Opportunity” (as that term is defined herein) offered by NomNom2go. However, once a Delivery Opportunity is accepted, CONTRACTOR shall be contractually bound to complete the Contracted Services in accordance with all consumer specifications and the terms laid out in this Agreement,
II. CONTRACTOR'S OPERATIONS
CONTRACTOR represents that he/she operates an independently established enterprise that provides delivery and other services, and that he/she satisfies all legal requirements and has all necessary licenses and permits necessary to perform any services contemplated by this Agreement. As an independent contractor/enterprise, CONTRACTOR shall be solely responsible for determining how to operate his/her business and how to perform the Contracted Services.
CONTRACTOR agrees to fully perform the Contracted Services in a timely, efficient, safe, and lawful manner. NomNom2go shall have no right to, and shall not, control the manner, method or means CONTRACTOR uses to perform the Contracted Services. Instead, CONTRACTOR shall be solely responsible for determining the most effective, efficient, and safe manner to perform the Contracted Services, including determining the manner of pickup, delivery, and route selection.
As an independent business enterprise, CONTRACTOR retains the right to perform services (whether delivery services or other services) for others and to hold him/herself out to the general public as a separately established business. The parties recognize that they are or may be engaged in similar arrangements with others and nothing in this Agreement shall prevent CONTRACTOR or NomNom2go from doing business with others. NomNom2go does not have the right to restrict CONTRACTOR from performing services for other businesses, customers or consumers at any time, even if such business directly competes with NomNom2go, and even during the time CONTRACTOR is logged into the NomNom2go platform. CONTRACTOR’s right to compete with NomNom2go, or perform services for business that compete with NomNom2go, will survive even after termination of this Agreement.
CONTRACTOR is not required to purchase, lease, or rent any products, equipment or services from NomNom2go as a condition of doing business with NomNom2go or entering into this Agreement.
CONTRACTOR agrees to immediately notify NomNom2go in writing at www.NomNom2go.com/help/ if CONTRACTOR's right to control the manner or method he/she uses to perform services differs from the terms contemplated in this Section.
III. CONTRACTED SERVICES
From time to time, the NomNom2go platform will notify CONTRACTOR of the opportunity to complete deliveries from restaurants or other businesses to consumers in accordance with orders placed by consumers through the NomNom2go platform (each of these is referred to as a "Delivery Opportunity"). For each Delivery Opportunity accepted by CONTRACTOR ("Contracted Service"), CONTRACTOR agrees to retrieve the orders from restaurants or other businesses on time and safely, ensure the order is accurately filled, and complete delivery orders to consumers in a safe and timely fashion. CONTRACTOR understands and agrees that the parameters of each Contracted Service are established by the consumer, not NomNom2go, and represent the end result desired, not the means by which CONTRACTOR is to accomplish the result. CONTRACTOR has the right to cancel, from time to time, a Contracted Service when, in the exercise of CONTRACTOR's reasonable discretion and business judgment, it is appropriate to do so. Notwithstanding the foregoing, CONTRACTOR agrees to maintain both a customer rating and a completion rate found here as of the date this Agreement becomes effective. Failure to satisfy this obligation constitutes a material breach of this Agreement, and NomNom2go shall have the right to terminate this Agreement and/or deactivate CONTRACTOR'S account.
CONTRACTOR acknowledges that NomNom2go has discretion as to which, if any, Delivery Opportunity to offer, just as CONTRACTOR has the discretion whether and to what extent to accept any Delivery Opportunity.
CONTRACTOR acknowledges that CONTRACTOR is engaged in CONTRACTOR’s own business, separate and apart from NomNom2go’S business, which is to provide an online marketplace connection using web-based technology that connects contractors, restaurants and/or other businesses, and consumers.
CONTRACTOR authorizes NomNom2go, during the course of a Contracted Service, to communicate with CONTRACTOR, consumer, and/or restaurant or other business to assist CONTRACTOR, to the extent permitted by CONTRACTOR, in facilitating deliveries. However, under no circumstances shall NomNom2go be authorized to control the manner or means by which CONTRACTOR performs delivery services or other services contemplated under this agreement. This includes, but is not limited to, the following:
NomNom2go does not require any specific type, or quality, of CONTRACTOR’s choice of transportation.
CONTRACTOR does not have a supervisor or any individual at NomNom2go to whom they report.
CONTRACTOR is not required to use any signage or other designation of NomNom2go on his or her vehicle or person at any point in their use of the platform to perform the Contracted Services.
NomNom2go has no control over CONTRACTOR’s personal appearance.
CONTRACTOR does not receive regular performance evaluations by NomNom2go.
CONTRACTOR may use whatever payment method he/she chooses to purchase items to be delivered to consumers, including, but not limited to CONTRACTOR's personal credit or debit card, cash or a prepaid card. CONTRACTOR may use, for CONTRACTOR's convenience, the prepaid card solely for purchasing items to be delivered to consumers. If CONTRACTOR chooses to use his/her personal credit or debit card or cash, CONTRACTOR shall invoice NomNom2go on a weekly basis and NomNom2go agrees to pay all invoices within 10 days of receipt.
In the event CONTRACTOR fails to fully perform any Contracted Service (a "Service Failure") due to CONTRACTOR's action or omission, CONTRACTOR shall forfeit all or part of the agreed upon fee for that service. If CONTRACTOR disputes responsibility for a Service Failure, the dispute shall be resolved pursuant to the "Payment Disputes" provision below.
CONTRACTOR agrees to immediately notify NomNom2go in writing by submitting a Support inquiry through https://help.NomNom2go.com/consumers/s/contactsupport if CONTRACTOR's services or scope of work differ in any way from what is contemplated in this Section.
IV. RELATIONSHIP OF PARTIES
The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement.
NomNom2go shall not have the right to, and shall not, control the manner or the method of accomplishing Contracted Services to be performed by CONTRACTOR. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in NomNom2go have been inserted solely for the safety of consumers and other CONTRACTORS using the NomNom2go platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
NomNom2go shall report all payments made to CONTRACTOR on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to CONTRACTOR qualify. CONTRACTOR agrees to report all such payments and any cash gratuities to the appropriate federal, state and local taxing authorities.
V. PAYMENT FOR SERVICES
Unless notified otherwise by NomNom2go in writing or except as provided herein, CONTRACTOR will receive payment per accurate Contracted Service completed in an amount consistent with the publicly provided pay model, which you can view here. From time to time, NomNom2go may offer opportunities for CONTRACTOR to earn more money for performing Contracted Services at specified times or in specified locations. Nothing prevents the parties from negotiating a different rate of pay, and CONTRACTOR is free to accept or deny any such opportunities to earn different rates of pay.
NomNom2go’s online credit card software may permit consumers to add a gratuity to be paid to CONTRACTOR, and consumers can also pay a gratuity to CONTRACTOR in cash. CONTRACTOR shall retain 100% of any gratuity paid by the consumer, whether by cash or credit card. NomNom2go acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the CONTRACTOR.
NomNom2go will process payments made by consumers and transmit to CONTRACTOR. Payments for all deliveries completed in a given week will be transferred via direct deposit on no less than a weekly basis unless it notifies CONTRACTOR otherwise in writing.
Notwithstanding the terms of Section V(1) – (3), fulfillment orders placed directly with merchants rather than through the App or NomNom2go.com (“Fulfillment Orders”) may be subject to a different payment model. More information regarding Fulfillment Orders may be found here. Nothing prevents the parties from negotiating a different rate of pay for a Fulfillment Order, and the CONTRACTOR is free to accept or reject Fulfillment Order opportunities. As with all Delivery Opportunities, CONTRACTOR shall retain 100% of any gratuity paid by the consumer for a Fulfillment Order. NomNom2go's software may not always include an option to add gratuity for Fulfillment Orders; however, consumers can pay a gratuity to CONTRACTOR in cash.
From time to time, NomNom2go may offer various promotions or referral programs. CONTRACTOR agrees that he or she will not manipulate or abuse the referral programs or promotions by, among other things: (a) tampering with the location feature on his or her mobile phone; (b) collecting incentive or promotional pay when not eligible to receive such pay under relevant policies; or, (c) creating multiple Driver or consumer accounts. CONTRACTOR understands that engaging in this type of manipulation or abuse constitutes a material breach of this Agreement and may lead to deactivation of his or her account.
VI. PAYMENT DISPUTES
CONTRACTOR's Failure: In the event there is a Service Failure, CONTRACTOR shall not be entitled to payment as described above (as determined in NomNom2go’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, restaurant or other business, CONTRACTOR, and any other party with information relevant to the dispute. NomNom2go shall make the initial determination as to whether a Service Failure was the result of CONTRACTOR's action/omission. CONTRACTOR shall have the right to challenge NomNom2go’s determination through any legal means contemplated by this Agreement; however, CONTRACTOR shall notify NomNom2go in writing at www.NomNom2go.com/help/ of the challenge and provide NomNom2go the opportunity to resolve the dispute. CONTRACTOR should include any documents or other information in support of his/her challenge.
NomNom2go’s Failure: In the event NomNom2go fails to remit payment in a timely or accurate manner, CONTRACTOR shall have the right to seek proper payment by any legal means contemplated by this Agreement and, should CONTRACTOR prevail, shall be entitled to recover reasonable costs incurred in pursuing proper payment, provided, however, CONTRACTOR shall first inform NomNom2go in writing at www.NomNom2go.com/help/ of the failure and provide a reasonable opportunity to cure it.
VII. EQUIPMENT AND EXPENSES
CONTRACTOR represents that he/she has or can lawfully acquire all equipment, including vehicles and food hot bags ("Equipment") necessary for performing Contracted Services, and CONTRACTOR is solely responsible for ensuring that the vehicle used conforms to all vehicle laws pertaining to safety, equipment, inspection, and operational capability.
CONTRACTOR agrees that he/she is responsible for all costs and expenses arising from CONTRACTOR's performance of Contracted Services, including, but not limited to, costs related to CONTRACTOR's Personnel (defined below) and Equipment. Except as otherwise required by law, CONTRACTOR assumes all risk of damage or loss to its Equipment.
VIII. PERSONNEL
In order to perform any Contracted Services, CONTRACTOR must, for the safety of consumers on the NomNom2go platform, pass a background check administered by a third-party vendor, subject to CONTRACTOR's lawful consent. CONTRACTOR is not required to perform any Contracted Services personally, but may, to the extent permitted by law and subject to the terms of this Agreement, hire or engage others (as employees or subcontractors of CONTRACTOR) to perform all or some of the Contracted Services, provided any such employees or subcontractors meet all the requirements applicable to CONTRACTOR including, but not limited to, the background check requirements that CONTRACTOR must meet in order to perform Contracted Services. To the extent CONTRACTOR furnishes his/her own employees or subcontractors (collectively "Personnel"), CONTRACTOR shall be solely responsible for the direction and control of the Personnel it uses to perform all Contracted Services.
CONTRACTOR assumes full and sole responsibility for the payment of all amounts due to his/her Personnel for work performed in relation to this Agreement, including all wages, benefits and expenses, if any, and for all required state and federal income tax withholdings, unemployment insurance contributions, and social security taxes as to CONTRACTOR and all Personnel employed by CONTRACTOR in the performance of Contracted Services under this Agreement. NomNom2go shall have no responsibility for any wages, benefits, expenses, or other payments due CONTRACTOR's Personnel, nor for income tax withholding, social security, unemployment insurance contributions, or other payroll taxes relating to CONTRACTOR or his/her Personnel. Neither CONTRACTOR nor his/her Personnel shall receive any wages, including vacation pay or holiday pay, from NomNom2go, nor shall they participate in or receive any other benefits, if any, available to NomNom2go's employees.
Unless mandated by law, NomNom2go shall have no authority to withhold state or federal income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of CONTRACTOR or his/her Personnel.
CONTRACTOR and his/her Personnel shall not be required to wear a uniform or other clothing of any type bearing NomNom2go's name or logo.
If CONTRACTOR uses the services of any Personnel to perform the Contracted Services, CONTRACTOR's Personnel must satisfy and comply with all of the terms of this Agreement, which CONTRACTOR must make enforceable by written agreement between CONTRACTOR and such Personnel. A copy of such written agreement must be provided to NomNom2go at least 7 days in advance of such Personnel performing the Contracted Services. The parties acknowledge that the sole purpose of this requirement is to ensure CONTRACTOR's compliance with the terms of this Agreement.
IX. INSURANCE
CONTRACTOR agrees, as a condition of doing business with NomNom2go, that during the term of this Agreement, CONTRACTOR will maintain current insurance, in amounts and of types required by law to provide the Contracted Services, at his/her own expense. CONTRACTOR acknowledges that failure to secure or maintain satisfactory insurance coverage shall be deemed a material breach of this Agreement and shall result in the termination of the Agreement and the loss of CONTRACTOR's right to receive Delivery Opportunities.
NOTIFICATION OF COVERAGE: CONTRACTOR agrees to deliver to NomNom2go, upon request, current certificates of insurance as proof of coverage. CONTRACTOR agrees to provide updated certificates each time CONTRACTOR purchases, renews, or alters CONTRACTOR's insurance coverage. CONTRACTOR agrees to give NomNom2go at least thirty (30) days' prior written notice before cancellation of any insurance policy required by this Agreement.
WORKERS' COMPENSATION/OCCUPATIONAL ACCIDENT INSURANCE: CONTRACTOR agrees that CONTRACTOR will maintain sufficient insurance to cover any risks or claims arising out of or related to CONTRACTOR’S relationship with NomNom2go, including workers’ compensation insurance where required by law. CONTRACTOR acknowledges and understands that CONTRACTOR will not be eligible for workers’ compensation benefits through NomNom2go and is instead responsible for maintaining CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance. CONTRACTOR’S maintenance of CONTRACTOR’S own workers’ compensation insurance or occupational accident insurance will not disqualify CONTRACTOR from participating in the Occupational Accident Insurance Policy for Drivers, which NomNom2go may make available to CONTRACTOR.
X. INDEMNITY
NomNom2go agrees to indemnify, protect and hold harmless CONTRACTOR from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly from NomNom2go's actions arranging and offering the Contracted Services to CONTRACTOR.
CONTRACTOR agrees to indemnify, protect and hold harmless NomNom2go, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of CONTRACTOR and/or his/her Personnel arising from the performance of delivery services under this Agreement, including personal injury or death to any person (including to CONTRACTOR and/or his/her Personnel), as well as any liability arising from CONTRACTOR's failure to comply with the terms of this Agreement. CONTRACTOR's obligations hereunder shall include the cost of defense, including attorneys' fees, as well as the payment of any final judgment rendered against or settlement agreed upon by NomNom2go or its parent, subsidiary and/or affiliated companies.
CONTRACTOR agrees to indemnify, protect and hold harmless NomNom2go, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to CONTRACTOR and CONTRACTOR's Personnel.
CONTRACTOR shall be responsible for, indemnify and hold harmless NomNom2go, including all parent, subsidiary, and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from all costs of CONTRACTOR's business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
XI. MUTUAL ARBITRATION PROVISION
CONTRACTOR and NomNom2go mutually agree to this Mutual Arbitration Provision, which is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) and shall apply to any and all disputes arising out of or relating to this Agreement, CONTRACTOR’s classification as an independent contractor, CONTRACTOR’s provision of Contracted Services to consumers, the payments received by CONTRACTOR for providing services to consumers, the termination of this Agreement, and all other aspects of CONTRACTOR's relationship with NomNom2go, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans With Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Federal Credit Reporting Act (or its state or local equivalents), Telephone Consumer Protection Act (or its state or local equivalents), or Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local claims arising out of or relating to CONTRACTOR’s relationship or the termination of that relationship with NomNom2go. The parties expressly agree that this Agreement shall be governed by the FAA even in the event CONTRACTOR and/or NomNom2go are otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. If for any reason the FAA does not apply, the state law governing arbitration agreements in the state in which the CONTRACTOR operates shall apply.
If either CONTRACTOR or NomNom2go wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought and (4) the amount in controversy. Any demand for arbitration by CONTRACTOR must be delivered to General Counsel, 901 Market Street, 6th Floor, San Francisco, California 94103.
Arbitration Class Action Waiver. CONTRACTOR and NomNom2go mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action—including but not limited to actions brought pursuant to the Private Attorney General Act (“PAGA”), California Labor Code section 2699 et seq., and any request seeking a public injunction—and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action, or to award relief to anyone but the individual in arbitration (“Arbitration Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the CPR Rules, as defined below, any claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Arbitration Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Arbitration Class Action Waiver that is enforceable shall be enforced in arbitration. All other disputes with respect to whether this Mutual Arbitration Provision is unenforceable, unconscionable, applicable, valid, void or voidable, and all disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. For sake of clarification only, nothing in this paragraph shall be construed to prohibit settlements on a class-wide, collective, and/or representative basis.
CONTRACTOR agrees and acknowledges that entering into this Mutual Arbitration Provision does not change CONTRACTOR’s status as an independent contractor in fact and in law, that CONTRACTOR is not an employee of NomNom2go or its customers and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
Any arbitration shall be governed by the CPR Administered Arbitration Rules and, when applicable, the CPR Employment-Related Mass-Claims Protocol (together, the “CPR Rules”) of the International Institute for Conflict Prevention & Resolution, except as follows:
a. The arbitration shall be heard by one arbitrator (the “Arbitrator”) selected in accordance with the CPR Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute.
b. If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 45 miles of CONTRACTOR’s residence as of the effective date of this Agreement.
c. The CPR fee schedule will apply with the following exceptions. Unless applicable law provides otherwise, in the event that NomNom2go and CONTRACTOR have agreed to this Mutual Arbitration Provision, NomNom2go and CONTRACTOR shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings, but CONTRACTOR’s share of such fees and costs will not exceed the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. NomNom2go shall pay any costs uniquely associated with arbitration, such as payment of the fees of the Arbitrator, as well as room rental.
d. The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party's claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
e. Except as provided in the Arbitration Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
f. The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
g. The Arbitrator's decision or award shall be in writing with findings of fact and conclusions of law.
h. The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information. Subject to the discretion of the Arbitrator or agreement of the parties, any person having a direct interest in the arbitration may attend the arbitration hearing. The Arbitrator may exclude any non-party from any part of the hearing.
i. Either CONTRACTOR or NomNom2go may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
Nothing in this Mutual Arbitration Provision prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Mutual Arbitration Provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. NomNom2go will not retaliate against CONTRACTOR for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. Disputes between the parties that may not be subject to predispute arbitration agreement, including as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this Mutual Arbitration Provision.
The CPR Rules may be found at www.cpradr.org or by searching for “CPR Administered Arbitration Rules” and “CPR Employment-Related Mass-Claims Protocol” using a service such as www.google.com or www.bing.com or by asking NomNom2go’s General Counsel to provide a copy.
CONTRACTOR’s Right to Opt Out of Mutual Arbitration Provision. Arbitration is not a mandatory condition of CONTRACTOR’s contractual relationship with NomNom2go, and therefore CONTRACTOR may submit a statement notifying NomNom2go that CONTRACTOR wishes to opt out and not be subject to this MUTUAL ARBITRATION PROVISION. In order to opt out, CONTRACTOR must notify NomNom2go in writing of CONTRACTOR's intention to opt out by sending a letter, by First Class Mail, to General Counsel, 901 Market Street, Suite 600, San Francisco, CA, 94103. Any attempt to opt out by email will be ineffective. The letter must state CONTRACTOR's intention to opt out. In order to be effective, CONTRACTOR's opt out letter must be postmarked within 30 days of the effective date of this Agreement. The letter must be signed by CONTRACTOR himself/herself, and not by any agent or representative of CONTRACTOR. The letter may opt out, at most, only one CONTRACTOR, and letters that purport to opt out multiple CONTRACTORS will not be effective as to any. No CONTRACTOR (or his or her agent or representative) may effectuate an opt out on behalf of other CONTRACTORS. If CONTRACTOR opts out as provided in this paragraph, CONTRACTOR will not be subject to any adverse action from NomNom2go as a consequence of that decision and he/she may pursue available legal remedies without regard to this Mutual Arbitration Provision. If CONTRACTOR does not opt out within 30 days of the effective date of this Agreement, CONTRACTOR and NomNom2go shall be deemed to have agreed to this Mutual Arbitration Provision. CONTRACTOR has the right to consult with counsel of CONTRACTOR's choice concerning this Mutual Arbitration Provision (or any other provision of this Agreement).
This Mutual Arbitration Provision is the full and complete agreement relating to the formal resolution of disputes covered by this Mutual Arbitration Provision. In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
XII. LITIGATION CLASS ACTION WAIVER
To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section XI, CONTRACTOR agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because CONTRACTOR opted out of the Mutual Arbitration Provision or any other reason, will be conducted solely on an individual basis, and CONTRACTOR agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which CONTRACTOR acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). CONTRACTOR further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.
XIII. TERMINATION OF AGREEMENT
CONTRACTOR may terminate this Agreement upon seven (7) days written notice. NomNom2go may terminate this Agreement and deactivate CONTRACTOR’S Driverr account only for the reasons set forth in the NomNom2go Deactivation Policy, or for a material breach of this Agreement. Notwithstanding any other provision in this Agreement, NomNom2go reserves the right to modify the Deactivation Policy if, in NomNom2go’s good faith and reasonable discretion, it is necessary to do so for the safe and/or effective operation of the NomNom2go platform. NomNom2go shall provide notice of any such changes to CONTRACTOR via e-mail. Changes to the Deactivation Policy shall be effective and binding on the parties upon CONTRACTOR’s continued use of the NomNom2go platform following NomNom2go’s e-mail notice of such modifications. Nothing will prevent CONTRACTOR from attempting to negotiate an exemption from any modification to the Deactivation Policy.
CONTRACTOR’s and NomNom2go’s obligations and rights arising under the Mutual Arbitration Provision of this Agreement shall survive termination of this Agreement. Notwithstanding any other provision in this Agreement, the Deactivation Policy is subject to change; such changes shall be effective and binding on the parties upon NomNom2go’S provision of notice to CONTRACTOR via e-mail.
XIV. ENTIRE AGREEMENT, TRANSFERABILITY, AND WAIVER
This Agreement shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed or amended in any respect, unless in writing and signed by both parties. Before accepting any modifications, alterations, changes or amendments, CONTRACTOR shall have the right to discuss any proposed changes with NomNom2go and consider whether to continue his/her contractual relationship with NomNom2go. This Agreement supersedes any prior contract between the parties. To the extent NomNom2go’s consumer facing Terms and Conditions Agreement (or updated consumer facing Terms and Conditions Agreement, if applicable) is inconsistent or conflicts with this Agreement, this Agreement controls. However, the decision to opt-out of the Mutual Arbitration Provision in this Agreement does not affect the enforceability of any arbitration agreement in the consumer facing Terms and Conditions Agreement to which Contractor may be bound (and vice versa). This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that NomNom2go may assign its rights and obligations under this Agreement to an affiliate of NomNom2go or any successor(s) to its business and/or purchaser of substantially all of its stock or assets. References in this Agreement to NomNom2go shall be deemed to include such successor(s).
The failure of NomNom2go or CONTRACTOR in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect.
XV. MISCELLANEOUS
CAPTIONS: Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
SEVERABILITY Clause: Except as specifically provided in Section XI, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.
GOVERNING LAW: Except for the Mutual Arbitration Provision above, which is governed by the Federal Arbitration Act, the choice of law for interpretation of this Agreement, and the right of the parties hereunder, as well as substantive interpretation of claims asserted pursuant to Section XI, shall be the rules of law of the state in which CONTRACTOR performs the majority of the services covered by this Agreement.
NOTICE AND OPPORTUNITY TO CURE: CONTRACTOR agrees to notify NomNom2go in writing at https://www.NomNom2go.com/help/ of any breach or perceived breach of this Agreement, of any claim arising out of or related to this Agreement, or of any claim that CONTRACTOR’s services or scope of work differ in any way from what is contemplated in this Agreement, including but not limited to the terms in Sections II (Contractor’s Operations) and III (Contracted Services), or if the relationship of the parties differs from the terms contemplated in Section IV (Relationship of Parties).
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RESTAURANT OWNER TERMS OF SERVICE AGREEMENT
This Agreement (“Agreement”) governs the terms of participation with NomNom2go, LLC. made and entered into as of the date of electronic submission/and or agreeing to the Terms of Service on the NomNom2go Restaurant app, by and between NomNom2go, LLC. (Service Provider) and your restaurant (Restaurant), or your liquor store (Liquor Store), or your brewery (Brewery) with respect to the following facts:
A.NomNom2go, LLC., operating online at http://www.nomnom2go.com, and as an Apple and Android application will act as a disclosed dual agent advertising, selling, and collecting revenue on behalf of my restaurant.
B. Service Provider (NomNom2go, LLC.) assumes no liability associated with the sale of food and drink provided by restaurant, or liquor store, or brewery without limitation, computation and payment of sales tax to the appropriate taxing authority, compliance with appropriate health codes with respect to preparation of food, and all matters concerning quality and condition of the food and drink.
C. The parties want to enter an agreement whereby Service Provider (NomNom2go, LLC.) would be encouraged to introduce customers interested in purchasing the products of my restaurant for a fee.
Restaurant, or liquor store, or brewery owner agrees to pay NomNom2go, LLC. a “service fee” for bringing business, advertising, printing of tourist pamphlets, and social media posts to my restaurant, liquor store or brewery. Further, restaurant, or liquor store, or brewery owner agrees that said “service fee” will be paid in the form of a discount applied to all orders consummated by www.NomNom2go.com or, or the application for Apple or Android, or NomNom2go, LLC at the time of purchase.
WHEREFORE, for good and valuable consideration, the parties agree as follows:
1. SERVICE TERM: Commencing on the date hereof, and continuing until one or both parties desires to terminate this agreement.
2. ACCOUNT SET-UP: To be completed yourself online, or on the app or by a sales representative or authorized agent or partner of NomNom2go, LLC.
3. SERVICE FEE: SERVICE FEE AMOUNTS TO 18.5% (0.185) OF THE RETAIL PRICE OF MENU ITEMS, NOT INCLUDING TAX, OF ALL ORDERS CONSUMMATED THROUGH NomNom2go, LLC. OR http://www.NomNom2go.com OR ON THENomNom2go APPLE OR ANDROID APPLICATION. FEE PAID AT THE TIME OF PURCHASE IN THE FORM OF A DISCOUNT DEDUCTED FROM ORDER TOTAL.
4. PAYMENT: Payments will be done electronically via direct deposit less direct deposit fee. Please allow 2 weeks for initial payment.
5. SALES TAX: Sales tax will be collected on behalf of the restaurants or liquor stores, or brewery and will be be itemized weekly and be part of the weekly direct deposit payout.
6. LIQUOR STORE, AND BREWERY PARTNERS: NomNom2go will collect information on customer orders in accordance with Colorado laws. Includes: Customer Name, age, order log, delivery address, and driver log to confirm age, and identification of ordering customer. This log will be emailed weekly to the Liquor store or Brewery. A separate approved agreement with the liquor store or brewear, NomNom2go LLC, and the Division of Liquor/Tobacco Enforcement of Colorado is needed for liquor deliveries.
7. PROMOTIONAL MATERIALS: For a mutually rewarding relationship, NomNom2go.com strongly encourages restaurant owners to solicit the availability of delivery services.NomNom2go, LLC. furnishes promotional materials at no cost to participating restaurants. Promotional materials include: Vanity cards (full color business cards), Point of Sale (POS) Signage, and 3.5” x 10” vinyl decals.
8. Indemnity.
Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (a) the negligence or willful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding NomNom2go and Delivery Partners to the extent they are your agents pursuant to an Order Form) in their performance of this Agreement; (b) any claims that the Indemnifying Party breached its representations and warranties in this Agreement; or (c) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Company Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to any harm resulting from your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, except to the extent such harm was directly caused by the gross negligence or willful misconduct of Company or its employees, agents or Delivery Partners. Each Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
9.LIMITATION OF LIABILITY: EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, LIMITATION OF LIABILITY IN NO EVENT WILL NomNom2go BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (EVEN IF NomNom2go HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH NomNom2go FOR RESTAURANTS AND FOR LIQUOR STORES AND BREWERIES. NomNom2go ASSUMES NO RESPONSIBILITY AND WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR DEVICE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES. NomNom2go ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED FROM NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL NomNom2go'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 (A) THE AMOUNT PAID BY YOU TO NomNom2go, OR (B) $100 (WHICHEVER IS LESS). YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND NomNom2go AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. IF YOU ARE DISSATISFIED WITH NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES OR DO NOT AGREE TO ANY PROVISIONS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING NomNom2go FOR RESTAURANTS, FOR LIQUOR STORES, AND FOR BREWERIES.
10. SECTION HEADINGS: The headings of paragraphs, sections and other subdivisions of this agreement are for convenient reference only. They shall not be used in any way to govern, limit, modify, construe this agreement or any part or provision thereof or otherwise be given any legal effect.
11. ENTIRE AGREEMENT: This agreement contains the full and complete understanding and agreement between the parties with respect to the within subject matter, and supersedes all other agreements between the parties whether written or oral relating thereto, and may not be modified or amended except by written instrument executed by both of the parties hereto. This agreement shall in all respects be subject to the laws of the State of Colorado applicable to agreements executed and wholly performed within such State.
