Acceptance of Terms
1.1 eHungry, Inc. (referred to here as "eHungry")
provides its Service (as defined below) to You
through its Web site, affiliate or reseller sites (the
"Site"), subject to this Terms of Service agreement
("TOS"). By accepting this TOS or by accessing or
using the Service or Site, You acknowledge that you
have read, understood, and agree to be bound by this
TOS. If You are entering into this TOS on behalf of
a company or other legal entity, You represent that
You have the authority to bind such entity and its
affiliates to these TOS, in which case the terms
"You" or "Your" shall refer to such entity and its
affiliates. If You do not have such authority, or if
You do not agree with these TOS, You must not accept
these TOS and may not use the Service.
1.2 eHungry may change this TOS from time to time without prior notice. You can review the most current version of this TOS at any time at http://www.ehungry.com/tos. The revised terms and conditions will become effective upon posting and if You use the Service after that time, we will treat your use as acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to You, your only remedy is to stop accessing and using the Service.
Description of Service
2.1 The Site is a Web-based solution through which restaurants may provide online ordering for their customers and customers may connect with restaurants to place orders for pickup, dine-in and/or delivery. The "Service" includes (a) the Site, (b) the online ordering system, tools and services provided through the Site and by the Application Programming Interface ("API") made available via the Site, and (c) all software, data, text, images, sounds, video, and content made available through the Site or services, or developed via the API (collectively referred to as the "Content"). Any new features added to or augmenting the Service are also subject to this TOS.
General Conditions / Access and Use of the
3.1 Subject to the terms and conditions of this TOS, You may access and use the Service only for Your purposes as contemplated by the Agreement. You shall not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by this TOS; (b) use the Service to process data on behalf of any third party, or (c) use the Service in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Service and its components.
3.2 Subject only to the limited right to access and use the Service expressly granted to You under this TOS, all rights, title and interest in and to the Service and its components will remain with and belong exclusively to eHungry. You shall not modify, adapt or hack the Service to falsely imply any sponsorship or association with eHungry, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
3.3 You are solely responsible for all materials, information, data, text, messages or other content that You, or any Authorized User, upload, post, e-mail, transmit, or otherwise make available via the Service. You have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content. You are responsible for maintaining the confidentiality of Your login and account and are fully responsible for any and all activities that occur under Your login or account.
3.4 You warrant that You own or have sufficient legal right to the intellectual property rights to the content and that the content, including any use thereof by eHungry as described herein, does not violate applicable law or the rights of any third party. You hereby grant eHungry, eHungry's affiliates, resellers and partners a worldwide, irrevocable, royalty-free, nonexclusive, sublicensable right to use, copy, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish the content and subsequent versions of the content for the purposes of (i) displaying the content on the Internet, (ii) processing the content in connection with providing the Services, and/or (iii) storing or hosting the content in a remote database or on the Site for access. This license will apply to the distribution and the storage of the content in any form, medium, or technology now known or later developed.
3.5 eHungry reserves the right to access any or all of Your accounts for support, maintenance or servicing.
3.6 You understand that the technical processing and transmission of the Service, including Your content or the content of your users / customers, may be transferred unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to eHungry’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service.
3.7 You understand and acknowledge that You or Your customer's data, including personal and credit card information, may be provided to you. You agree that it is Your responsibility to properly handle, secure and destroy that data. eHungry shall not be liable to You or any third party for misuse of that data.
3.8 The failure of eHungry to exercise or enforce any right or provision of this Terms of Service shall not be a waiver of that right. You acknowledge that this Terms of Service is a contract between You and eHungry, even though it is electronic and is not physically signed by You and eHungry, and it governs Your use of the Service and takes the place of any prior agreements between You and eHungry.
3.9 eHungry reserves the right to modify or discontinue any service with or without notice to you. eHungry shall not be liable to you or any third party should eHungry exercise its right to modify or discontinue services.
3.10 Unauthorized access to the Site is a breach of this Agreement and a violation of the law. You agree not to access the Site by any means other than through the interface that is provided by eHungry for use in accessing the Site. You agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Site, except those automated means that eHungry has approved in advance in writing.
3.11 You may not access the Site or Services for purposes of monitoring its availability, performance, accounts, features or functionality, or for any other benchmarking or competitive purposes.
3.12 Use of the Site is subject to existing laws and legal process. Nothing contained in this Agreement will limit eHungry's right to comply with governmental, court, and law-enforcement requests or requirements relating to Your use of the Site, which may include disclosing Your Content to the applicable authorities.
4.1 The Site holds certain content, such as text, graphics, logos, button icons, images, audio clips, data compilations, and software, that is the property of eHungry or its content suppliers and protected by international copyright laws. No license is granted to You to use such copyrighted material in any way.
4.2 eHungry and eHungry's various logos used or displayed on the Service are trademarks of eHungry and you may only use these trademarks or logos for promotional purposes to identify yourself as a customer or user of the eHungry products and services, provided You do not attempt to claim ownership of the marks by incorporating any of them within Your names or offerings.
4.3 eHungry reserves the right to use Your company name, logo, content, trademarks and copyrights for the purpose of providing an online (Web), mobile and/or app experience.
Payments and Refunds
5.1 Trials and Payments. The Service is made available on a pay-as-you-go basis and is charged at the start of Your elected subscription term (generally monthly). Plans may come with an initial free trial period of up to 30 days.
5.2 Plan and Price Changes. Prices of all eHungry plans and Services are subject to change upon 30 days notice from eHungry. Such notice may be provided at any time and will be posted on the Pricing page found at http://www.ehungry.com.
5.3 Refunds. There are no refunds or credits for partial months of service, plan downgrades, or refunds for months unused. No exceptions will be made in order to treat everyone equally and keep our administrative costs low for the ultimate benefit of our customer base.
5.4 Upgrading and Downgrading Plans. If you choose to upgrade
Your plan, any incremental cost will be prorated
over the remaining term of the subscription period
and charged to Your account. Subsequently, Your
credit card will automatically be charged the
adjusted rate on Your next billing cycle subsequent
to the pro-rating billing. A billing exception
exists if You are on a monthly billing cycle where
You will not see a prorated charge or credit in the
current month, but Your new billing rate will be
reflected on Your next monthly bill. Downgrading Your plan level may cause the loss of
content, features, or capacity of Your account and
eHungry does not accept any liability for such loss.
5.5 Credit Card Billing, Receipts and Privacy. The account owner will receive an email receipt upon each credit card charge. The receipts are also available for the account owner from within the application. eHungry provides an interface for the account owner (as defined in the sign-up procedure) to change credit card information (e.g., upon card renewal).
5.6 Credit Card Disclaimer. eHungry will make reasonable efforts to maintain the confidentiality of Your credit card data and other personal information ("Sensitive Information") in its possession. Notwithstanding the foregoing, however, eHungry accepts no responsibility and will not be liable for any loss, damage, misuse, or unauthorized access of Your Sensitive Information even if eHungry has been advised of the possibility of such liability.
5.7 Credit Card Privacy. eHungry uses third-party intermediaries to manage credit card processing and these intermediaries may store, retain, or use Your billing information to process Your credit card information. Though eHungry takes every measure to protect our users’ credit card information, should any third party illegally break through our security and access our database, then your or your customer's data may be at risk. In addition, you may receive credit card information along with an order. It is your resposibility to properly handle, secure and destroy that credit card information. In such events, you release eHungry from all liability regarding the use, management and storage of credit card information.
Cancellation and Termination
6.1 Either You or eHungry may terminate your account at any time, with or without cause, upon notice.
6.2 You are responsible for properly canceling
Your account. The account owner (as defined in the
sign-up procedure) can cancel the account at any
time by clicking on the Cancel link in Your account.
You will lose access to all of Your content, sites and services upon
cancellation and we may delete or reuse them at any time. This information
cannot be recovered for You once your account is cancelled.
If You cancel the Service before the end of Your
current subscription period, your
cancellation will take effect immediately and there will be no refunds or credits.
6.3 eHungry reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your content in the Service, for any reason, including, if eHungry believes that You have violated these TOS. eHungry will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Your use of Service, may be referred to appropriate law enforcement authorities. eHungry shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
Disclaimer of Warranties
7.1 THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW AND EHUNGRY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT EHUNGRY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM EHUNGRY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
Limitation of Liability
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL EHUNGRY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, EHUNGRY SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE MONTHLY SERVICE FEE PAID OR PAYABLE BY YOU FOR THE ONE MONTH PRECEDING THE TIME OF ANY CLAIM FOR MONETARY DAMAGES OR ONE HUNDRED ($100) U.S. DOLLARS, WHICHEVER IS GREATER. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8.2 SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, EHUNGRY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.3 YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN SIXTY (60) DAYS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
8.4 BY USING THE SITE, YOU ACKNOWLEDGE THAT EHUNGRY AND ITS RESTAURANTS ARE INDEPENDENT AND THAT EHUNGRY MAKES NO REPRESENTATION AND/OR WARRRANTY IN REGARDS TO THE QUALITY OF ANY EXPERIENCE YOU MIGHT HAVE AT ANY OF ITS RESTAURANTS. TO THAT END, YOU AGREE TO INDEMNIFY AND HOLD EHUNGRY HARMLESS FROM ANY AND ALL LIABILITY ARISING OUT OF OR RELATED TO YOUR EXPERIENCE WITH EHUNGRY’S RESTAURANTS.
9.1 eHungry may assign or transfer this TOS, in whole
or in part, without restriction.
10.1 You are responsible for complying with any
applicable laws, rules, or regulations governing the
export of the Service or any of its components.
11.1 In the event of any dispute between the parties which arises under these TOS such dispute shall be settled by arbitration in accordance with the rules for commercial arbitration of the American Arbitration Association in effect at the time such arbitration is initiated, and subject further to the provisions of the North Carolina Revised Uniform Arbitration Act, incorporated by reference. A list of arbitrators shall be presented to the claimant and respondent from which one will be chosen using the applicable rules. The hearing shall be conducted in the City of Raleigh, County of Wake, State of North Carolina, unless both parties consent to a different location. The decision of the arbitrator shall be final and binding upon all parties.
11.2 The prevailing party shall be awarded all of the filing fees and related administrative costs. Administrative and other costs of enforcing an arbitration award, including the costs of subpoenas, depositions, transcripts and the like, witness fees, payment of reasonable attorney's fees, and similar costs related to collecting an arbitrator's award, will be added to, and become a part of, the amount due pursuant to this Agreement. Any questions involving contract interpretation shall use the laws of North Carolina. An arbitrator's decision may be entered in any jurisdiction in which the party has assets in order to collect any amounts due hereunder.
No Duty to Back-Up
12.1 The Service is not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. You should not rely on the Service as your only storage facility. It is your sole responsibility to back up any data submitted or otherwise used with respect to the Service. To that end, you expressly acknowledge that agree that eHungry is not responsible for any loss of data you provide through the course of using the Service and you further agree that you will not hold eHungry liable for any loss of data which may occur.
Third Party Sites
13.1 The Service may link to other sites on the Internet and/or otherwise include references to content provided by third parties including, but not limited to third party Web sites and third party advertisements ("Third Party Content"). The linking to any Third Party Content is provided merely as a convenience and should not be considered as an endorsement of the Third Party Content by eHungry. eHungry is not in a position to evaluate the decency, truthfulness, and/or accuracy of any Third Party Content and your reliance on any Third Party Content is done so at your own risk. Moreover, any and all communications, transactions, and other interactions between you and any third party are the responsibility of you and the third party and eHungry shall have no obligation or responsibility of any such communications, transactions, and interactions.
Procedure for Making Claims of Copyright Infringement
14.1 If you believe that your copyrightable work of authorship is being infringed upon by eHungry, please e-mail the following information to email@example.com: (i) a description of the copyrighted work that you claim has been infringed upon; (ii) a description of where the material that you claim is infringing is located on the site; (iii) your address, telephone number, and e-mail address; (iv) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (v) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Ability to Accept Terms of Service
15.1 You represent and warrant that: (i) you are over the age of thirteen (13); and (ii) are fully able and competent to accept this TOS. For the avoidance of doubt, if you are under the age of thirteen (13), please do not use the Web site.
Communications and Content
16.1 eHungry shall be free to reproduce, use, disclose, and distribute any and all content produced and communication conducted with us through the Service and Site including but not limited to Web pages, menus, designs, feedback, questions, comments, suggestions and the like (the "Communications and Content"). You shall have no right of confidentiality in the Communications and Content and eHungry shall have no obligation to protect the Communications and Content from disclosure. We shall be free to use any ideas, concepts, know-how, content or techniques contained in the Communications and Content for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information.
17.1 YOU AGREE TO INDEMNIFY, DEFEND AND HOLD EHUNGRY AND ITS RESELLERS AND PARTNERS (INCLUDING ALL OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS OF THE FOREGOING) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES, INCLUDING ATTORNEYS' FEES (COLLECTIVELY, THE "CLAIMS"), ARISING OUT OF, INCIDENT TO, OR RESULTING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICES, YOUR CONTENT, OR BREACH OF THIS AGREEMENT.
18.1 All of the information that eHungry collects from You, such as registration and credit card information, is subject to applicable privacy laws. eHungry will not use private user information collected from You for any use not connected to providing Services under this Agreement. eHungry will take all reasonable measures to protect personal information and will not disclose any personal information to unnecessary third-parties. You agree to bear all risks of loss associated with disclosing such information and agree to waive any and all claims of loss as against eHungry.
19.1 The Site features trademarks, service marks, and logos that are the property of eHungry and/or its affiliates, suppliers, partners and licensors. The Site also may include trademarks, service marks or logos of other third parties. All of these trademarks, service marks and logos are the property of their respective owners, and You agree not to use them in any manner without the prior written permission of the applicable owner.
19.2 eHungry may be required by state or federal law to notify You of certain events. You hereby acknowledge and consent that such notices will be effective upon eHungry's posting them on the Site or delivering them to You through e-mail. You may update Your e-mail address by visiting the Services where You have provided contact information. If You do not provide eHungry with accurate information, eHungry cannot be held liable if eHungry fails to notify You.
19.3 eHungry's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. This Agreement and Your right to use the Services may not be assigned by You without the prior written approval of eHungry.
19.4 This Agreement constitutes the entire agreement between You and eHungry and governs Your use of the Site and Services, superseding any prior agreements that You may have with eHungry. Any additional or different terms in Your ordering documentation such as purchase orders are hereby deemed to be material alterations and notice of objection to, and rejection of, them is hereby given.
Errors and Omissions
20.1 The Site may contain technical inaccuracies and typographical errors, including but not limited to inaccuracies relating to pricing or availability applicable to certain products or services offered by eHungry. eHungry shall not assume responsibility or liability for any such inaccuracies, errors or omissions, and shall have no obligation to honor reservations or information affected by such inaccuracies. eHungry reserves the right to make changes, corrections, cancellations and/or improvements to any information contained on the Site, and to the products and programs described in such information, at any time without notice, including after confirmation of a transaction.
21.1 In the event that eHungry is unable to perform any of its obligations under this Agreement or You are unable to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure or other causes beyond our reasonable control (a "Force Majeure Event") eHungry shall immediately give notice to You, if practicable, and shall take reasonable measures to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended indefinitely.
22.1 If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.