The terms and conditions stated in this User Terms of Service (the “Agreement”
) govern your participation as the purchaser of meals (“Meals”
) on the marketplace (“Marketplace”
) developed and maintained by Hungry Marketplace, Inc. (“Hungry”
), as made available through the Hungry web site (www.TryHungry.com
) or any mobile or other application, any and all of which shall be referred to herein as the “Hungry App”
, each of which are incorporated into this Agreement by this reference. This Agreement will take effect at the time you click “I ACCEPT”, download the Hungry App, or begin using the Hungry App, whichever is earliest.
All references herein to Hungry or “we” mean Hungry Marketplace, Inc., including its successors and assigns, which operates the Hungry App and the Marketplace. All references herein to “User” or “you” refer to any person participating in the Marketplace as a user of the App who is not participating as a chef (“Chef”
). The right to participate in the Marketplace is personal to you and is not transferable to any other person or entity without the express written permission of Hungry.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT-OUT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BELOW.
Table of Contents:
· THE HUNGRY MARKETPLACE
· USER ACCOUNT SETUP
· MEAL PURCHASES; CANCELLATIONS; DELIVERY; REFUNDS
· FOOD ALLERGIES; HUNGRY DISCLAIMERS
· RELEASE OF LIABILITY AND HOLD HARMLESS
· CHANGES TO THIS AGREEMENT
· ADDITIONAL DISCLAIMERS
· LIMITATIONS OF LIABILITY
· TERM AND TERMINATION
· GOVERNING LAW
· DISPUTE RESOLUTION
THE HUNGRY MARKETPLACE
The Hungry Marketplace enables Chefs to provide their services and meals (“Meals”) for sale to Users through the Marketplace and to arrange for the delivery of Meals to Users through delivery mechanisms provided by Hungry. The Hungry App includes certain features and functionalities to facilitate Chefs’ sales of Meals on the Hungry Marketplace, which features may include, without limitation, Meal listings, search functions, Chef biographies, User reviews, order-taking functions, payment processing mechanisms, delivery system interfaces, and other features, at the sole discretion of Hungry.
As between Hungry and you, Hungry’s role is solely (a) to facilitate the availability of the Marketplace for Chefs and Users, and (b) to collect payment from Users for Meals.
HUNGRY CANNOT AND DOES NOT CONTROL THE PREPARATION OF ANY MEALS, THE INGREDIENTS USED IN ANY MEALS, THE CONDITION, LEGALITY, OR SUITABILITY OF ANY MEALS OR THE KITCHENS IN WHICH THEY ARE PREPARED. MEALS MAY BE MADE IN KITCHENS THAT ARE NOT SUBJECT TO REGULATION OR INSPECTION BY ANY FEDERAL, STATE, OR LOCAL GOVERNMENT AUTHORITIES. HUNGRY IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO ANY MEALS OFFERED FOR SALE THROUGH THE MARKETPLACE. ACCORDINGLY, ANY PURCHASE AND CONSUMPTION OF MEALS BY YOU ARE MADE AT YOUR OWN RISK.
USER ACCOUNT SETUP
To become a User of the Marketplace, you must be at least age 18 (or the age of majority in your jurisdiction) and set up a Hungry account (“Account”) by submitting an application (“Application”) either through a sign-in service such as Facebook, or by creating a display name and submitting your contact information, email address, and password directly to the Hungry App. Sign-in services like Facebook will authenticate your identity and provide you the option to share certain personal information with us, such as your name and email address to pre-populate our Application. Such services also give you the option to post information about your activities on the Hungry to share with others within your social network.
A valid Application must include your legal name, delivery address, billing address, e-mail address, and any other information requested by Hungry at the time of submission of the Application. You have an ongoing responsibility to update any information provided to Hungry in your Application to ensure that Hungry’s files for your Account remain current. Hungry reserves the right to refuse acceptance of your Application at its sole discretion, with or without cause. Access to your Account allows you to view your past purchases, modify your preferences, and ensure permissible use of the Hungry App.
If you provide any false, inaccurate, untrue, or incomplete information in your Application, we may immediately terminate your access to and use of the Service. You are solely responsible for all activities that occur under your Account. It is your responsibility to keep the confidentiality of any username(s) and password(s) associated with your Account. If you become aware of any unauthorized use of your Account, you must notify Hungry immediately by writing to Security @TryHungry.com or to Hungry Marketplace, Inc. 3100 N Clarendon Blvd. Suite 200, Arlington, VA 22201. Hungry will not be liable for any loss or damage arising from the unauthorized access to or use of your Account. Upon termination of this Agreement for any reason, Hungry will disable and/or delete your Account.
MEAL PURCHASES; CANCELLATIONS; DELIVERY; REFUNDS
1. Meal Purchases. You agree to pay the stated price for each Meal that you order through the Hungry App, plus any applicable taxes and disclosed delivery fees.
2. Cancellations. All sales are final. If something unexpected happens in the course of fulfilling your order, we reserve the right to cancel your order for any reason. If we cancel your order, we’ll refund any payment made. If you would like to request a cancellation of an order, please e-mail us at Service@tryhungry.com or call us at 202-848-1519
3. Delivery. We cannot guarantee every Meal will arrive at the specified time stated. In the case of events outside our control, such as inclement weather or traffic, we will attempt to deliver your Meal as soon as reasonably possible. If delivery is not feasible, we will cancel your Meal and issue you a credit or refund the charges paid for that Meal. If a Meal arrives late, you agree that you will still accept the Meal and release us from any loss or damages that you encounter as a result of early or late delivery.
4. Refunds. If a Chef cancels your order, any collected payment will be reimbursed to you. Otherwise, collected payments are final and non-refundable, unless otherwise determined by Hungry.
FOOD ALLERGIES; HUNGRY DISCLAIMERS
YOU ARE SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE CONTENT OF THE MEALS AND THEIR INGREDIENTS AND THE WAY IN WHICH MEALS ARE PREPARED BEFORE HANDLING, USING OR CONSUMING SUCH MEALS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT A CHEF MAY STORE AND USE INGREDIENTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
IF YOU HAVE ANY SIGNIFICANT FOOD ALLERGIES OF ANY KIND, YOU SHOULD NOT USE THE HUNGRY APP OR THE HUNGRY MARKETPLACE.
HUNGRY IS NOT RESPONSIBLE OR LIABLE FOR ANY ILLESS OR OTHER RESULTS OR DAMAGE CAUSED BY THE CONSUMPTION OF ANY MEAL, INCLUDING, WITHOUT LIMITATION, ANY DEATH, BODILY INJURY, OR HEALTH PROBLEMS, OR ANY OTHER NEGATIVE EXPERIENCE WITH ANY CHEF-PROVIDED MEAL ORDERED THROUGH THE HUNGRY APP.
WE EXPRESSLY DISCLAIM ANY AND ALL LIABLITY IN CONNECTION WITH THE FOREGOING.
RELEASE OF LIABILITY AND HOLD HARMLESS
To the extent permitted under applicable laws, you expressly absolve and release Hungry and its affiliates, officers, directors, employees, agents, and other representatives from any liability or claim of harm related to or resulting from (a) any incorrect or inaccurate information about any Meal posted on the Hungry App, whether caused by our error or by any of the equipment or programming associated with or utilized in the Hungry App; (b) any injury, loss, or damages caused by a Chef, any other User, any Meal, or Meal information posted on or in connection with the Hungry App, whether online or offline; (c) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Hungry App, (d) severe weather, earthquakes or other natural disasters, strikes or other labor problems, wars, or (e) governmental or regulatory restrictions or actions.
CHANGES TO THIS AGREEMENT
Hungry reserves the right to make any changes to this Agreement at any time with or without advance notice to you. When these changes are made, Hungry will post the revisions to the appropriate section of the Hungry App for your review. A revised Agreement is effective immediately when posted to the Hungry App. It is your responsibility to review the Hungry App periodically to learn of any revisions to this Agreement. Your continued use of and participation in the Marketplace after the posting of such revisions will constitute your acknowledgment and acceptance of the terms of the revised Agreement.
HUNGRY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY OF THE MEALS PROVIDED BY THE CHEFS. WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
THE HUNGRY APP AND THE MARKETPLACE ARE PROVIDED ON AN "AS-IS" AND “AS AVAILABLE" BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. HUNGRY MAY MAKE MODIFICATIONS AND/OR CHANGES TO THE HUNGRY APP AND THE MARKETPLACE AT ANY TIME AND FOR ANY REASON. YOU ASSUME THE SOLE RISK OF MAKING USE OF AND/OR RELYING ON THE HUNGRY APP AND THE MARKETPLACE MADE AVAILABLE BY HUNGRY. NEITHER HUNGRY NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES MAKES ANY REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE HUNGRY APP OR THE MARKETPLACE FOR ANY PURPOSE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY. NEITHER HUNGRY NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES MAKES ANY REPRESENTATION OR WARRANTY THAT THE HUNGRY APP OR THE MARKETPLACE WILL OPERATE ERROR FREE OR IN AN UNINTERRUPTED FASHION. Some jurisdictions do not allow the disclaimer of certain warranties. Accordingly, only the disclaimers which are lawful in your jurisdiction will apply to you, and our liability will be limited to the maximum extent permitted by law.
LIMITATIONS OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER HUNGRY NOR ITS AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES SHALL BE LIABLE TO YOU FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS LIMITATION OF LIABILITY SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF THE HUNGRY APP OR THE MARKETPLACE; (II) ANY CHANGES WHICH HUNGRY MAY MAKE TO THE HUNGRY APP OR THE MARKETPLACE, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE HUNGRY APP OR THE MARKETPLACE (OR ANY FEATURES WITHIN THEM); (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE HUNGRY APP OR MARKETPLACE; (III) YOUR FAILURE TO PROVIDE HUNGRY WITH ACCURATE ACCOUNT INFORMATION; OR (IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. THE LIMITATIONS ON HUNGRY’S LIABILITY TO YOU IN THIS SUBSECTION SHALL APPLY WHETHER OR NOT HUNGRY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSS. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. Notwithstanding the foregoing, total liability of Hungry for any reason whatsoever related to use of the Hungry App or Marketplace shall not exceed the total amount paid to you as Chef Compensation in connection with the subject matter of the particular dispute.
TERM AND TERMINATION
This Agreement shall remain in effect for as long as you use the Hungry App to participate in the Marketplace. Hungry may temporarily or permanently stop providing the Hungry App or the Marketplace to you, or terminate this Agreement, at any time if (a) you have breached any provision of this Agreement, (b) Hungry is required to do so by law, (c) Hungry believes, in its sole discretion, that you have committed fraud with respect to your access to and use of the Hungry App or the Marketplace, (d) the provision of the Marketplace to you or others by Hungry is, in Hungry’s sole opinion, no longer commercially viable, or (e) Hungry is no longer providing the Marketplace to customers in the jurisdiction in which you reside or from which you use the Hungry App or the Marketplace. Termination is effective without notice. Hungry may disable access to your Account or otherwise prevent you from accessing the Hungry App. All provisions of this Agreement which by their nature should survive, will survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to principles of conflicts or choice of law.
This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or with your participation in the Marketplace or any matter concerning Hungry (collectively “Disputes”
) shall be governed exclusively by the laws of the Commonwealth of Virginia, excluding its conflict of law provisions.
If a Dispute arises under this Agreement, we agree to first contact each other with a written description of the Dispute, all relevant documents and information, and the proposed resolution. You agree to contact us with Disputes by writing to us at Hungry Marketplace, Inc. 3100 N Clarendon Blvd. Suite 200, Arlington, VA 22201. Hungry will contact you by letter or email to your address that we have on file for you.
If any Dispute cannot be resolved informally, we each agree that any and all Disputes, other than those filed in small claims court, shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association (“AAA”) in a location convenient to you. Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolution Procedures in effect at the time of submission of the demand for arbitration. We will pay all of the filing costs, including arbitrator fees. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Virginia: (i) any dispute, controversy, or claim related to or contesting the validity of our proprietary rights, including without limitation, trademarks, service marks, copyrights, patents, or trade secrets; or (ii) an action by a party for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief. You expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.
You shall have thirty (30) days from the date you set-up your Hungry account to opt-out of this arbitration agreement. To opt out of arbitration you must contact us at Legal@TryHungry.com. If more than thirty (30) days have passed, you are not eligible to opt out of arbitration.
, Chef Code of Conduct
, and Chef Terms of Service
are incorporated herein, constitute the entire agreement of the parties with respect to your use of the Hungry App and the Marketplace. No waiver by either party of any breach or default hereunder is a waiver of any preceding or subsequent breach or default. Section headlines are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement and the remaining portions of this Agreement shall continue in full force and effect. You agree that this Agreement and all agreements and notices incorporated herein may be automatically assigned by Hungry, in our sole discretion, to a third party. You may not assign your obligations to any other person or entity.