LaCarte Inc.

Terms of Use

        LaCarte Inc. (“Company" or “we” or “our” or “us”) offers restaurant order placement and delivery through the LaCarte mobile application (the “App”), or the LaCarte website (the “Website”) (the App and Website, collectively the “Service”). These Terms of Use (this “Agreement”) govern your use of the Service, including your placement and payment of food and beverage orders from participating restaurants, food trucks and/or other vendors of food and beverage products (collectively, “Merchants”). Please read this Agreement carefully, as it (among other things) requires in Sections 18 and 19 that you and the Company arbitrate certain claims instead of going to court and limits class action claims.

        Please press “Accept” if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at http://lacartemenu.com/. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not press “Accept,” in which case you may not use the Service.

Note for Children. Use of the Service by anyone under the age of 18 is prohibited.

1.         Privacy Policy.       The Company’s Privacy Policy, at link (the “Privacy Policy”), describes the collection, use and disclosure of data and information (including location and usage data) by the Company in connection with the Service. The Privacy Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the collection, use and disclose practices set forth therein.

2.         License to Use the App.       Subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to install and use the App on a compatible mobile device that you own or control for your personal, non-commercial purposes, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. Any use of the Service other than for private, non-commercial use is strictly prohibited.

3.         Ownership; Proprietary Rights.       As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, the software and technology used by the Company to provide App and/or Website features and functionality and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as may be expressly set forth herein, you agree not to reverse engineer, decompile, disassemble, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. The Company reserves the right to modify or discontinue the App and/or the Website or any version(s) thereof at any time in its sole discretion, with or without notice. You are not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent you do provide any Feedback to Company, you agree to assign and hereby do assign all right, title and interest in and to such Feedback to Company and acknowledge that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other compensation to you.

4.         Login Credentials; Social Services. In order to use some of the Service, you may be required to register by providing certain information. We may ask you to complete a registration form and create a user name and password (“Login Credentials”). During any such registration, you shall give truthful information (such as name and email address). You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your account (including without limitation financial obligations). You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials. You are responsible for keeping your registration information up to date through your account page, to the extent such feature is made available on the Website and/or the App. As part of the Service, you may sign in using your login for certain social media services supported by the Service, such as Facebook and Instagram (the “Social Services”). If you do so, you authorize us to access and use certain Social Services account information, including but not limited to your public Social Services profile and information about Social Services friends or connections you share in common with other Service users. For more information regarding the information we collect from you and how we use it, please consult our Privacy Policy.

5.         Ordering from Merchants.       The Company is a technology provider that allows Merchants to market and sell their food and beverage products through the Service (“Products”). Merchants are not affiliated with or controlled by the Company, and all information regarding the Products viewable through the Service is provided by the applicable Merchant and not the Company. Each purchase of a Product you make through the Service constitutes a contract between you and the applicable Merchant for the purchase and sale of the ordered Products for the stated price. The Company does not monitor, control or verify: (i) how Products are prepared (including whether any special requests you make can be or are honored), packaged, priced or delivered; (ii) whether any representations or warranties made by Merchants relating to Products (including ingredients lists and allergen information) are accurate, complete or not misleading; or (iii) whether Merchants and their Products comply with any laws, rules or regulations (including in relation to health, hygiene and food safety), and you acknowledge and agree that the Company shall have no obligation or liability to you with respect to any of the foregoing or any transactions or interactions you may have with a Merchant (including without limitation any personal injury, death or property damage which may occur in connection with the purchase or consumption of any food or beverage or item which may be purchased through the Service). Without limiting the generality of the foregoing, you acknowledge that refund decisions are within the discretion of the Merchants, not LaCarte.

6.         Alcoholic Beverages.       To the extent you purchase any alcoholic beverages that are made available for purchase through the Service, you represent and warrant that: (i) you are at least 21 years of age; (ii) you are purchasing such beverages for personal consumption and not for resale or any other commercial purpose; and (iii) you will not provide such beverages to any individual under the age of 21. The applicable Merchant may require you to present a valid form of identification verifying your date of birth, and your failure to do may result in the Merchant refusing to provide you with ordered beverages. Without limiting the generality of Section 5, you agree that the Company shall have no liability to you with respect to any decision made by a Merchant to provide or not provide to you any alcoholic beverages purchased by you through the Service.

7.         Fees.       The Company may charge you a transaction fee, at the rate set forth on the Website and/or the App from time to time, for each Order you place. Such fee shall be included with each payment you make to a Merchant, as contemplated in the next paragraph.

8.         Merchant Payments.       You agree to pay the applicable Merchant for all items ordered by you through the Service, and agree to pay the Company any associated transaction fee displayed to you at the time of your order. The Service may allow you to make a payment directly to the Merchant or through the Service. Payment processing transacted on the Service is provided by Stripe, Inc. (“Stripe”) or other third-party payment processors we may utilize from time to time (“Payment Processor”). The Company does not collect or store your credit card information. You can find out more about our privacy practices in our Privacy Policy. By providing a credit card or other payment method accepted by the Company or the Merchant and using the Service, you represent and warrant that you are authorized to use the designated payment method. If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your account may be suspended or cancelled. You must resolve any problem we or our Payment Processor encounter in order to proceed with your use of your account. If you feel you have been charged in error, you may contact the Company at ___. While the Company may facilitate your communication with the applicable Merchant and Stripe with regard to any payment dispute, you acknowledge and agree that the Company has no obligation to mediate or resolve any such payment dispute and shall not be liable to you with respect to any actual or alleged overcharge by a Merchant or failure by a Merchant to provide the ordered Products to your satisfaction.

9.         Mobile Services.       Use of the Service requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Service.

10.         Third Party Services.       The Service may include features or functionality that interoperate with online services operated by third parties such as Google, Facebook, and Instagram (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. You acknowledge that interoperability with Third Party Services is provided as a convenience and does not constitute material functionality of the Service or form any basis for the payment of fees hereunder. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Company shall have no liability with respect to any such modification, suspension or termination. Without limiting the foregoing, you are responsible for ensuring that your use of the Service in connection with Third Party Services complies with all policies, terms and rules applicable thereto. In addition, the Service may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them.

11.         Your Media.       The Service may allow you to submit or post content (such as reviews of a Merchant) that may be viewable to other Service users (“Media”). You shall retain all of your ownership rights in your Media. You hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicensable and transferable license to use, reproduce, display, transmit and prepare derivative works of your Media, and to additionally distribute and publicly perform Media in connection with the Service and the Company’s (and its successor’s) business, in any media formats and through any media channels. In connection with your Media, you agree that you will not: (i) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) post advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company reserves the right remove any Media at any time in its sole discretion. You hereby acknowledge that you may be exposed to Media from other users that is inaccurate, offensive, obscene, indecent, or objectionable when using the Service, and further acknowledge that the Company does not control the Media posted by Service users and does not have any obligation to monitor such content for any purpose.

12.         Prohibited Uses.       As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement, or would cause a breach of any applicable agreements with third parties to which you are bound (such as, by way of example, your agreement with your wireless data services carrier). You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party). By using the Service, you represent and warrant that: (i) you are not located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist-supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

13.         Termination.       You may terminate this Agreement at any time, for any reason or for no reason, by ceasing use of the Website or deleting the App from your device. Deletion of the App does not cause your account to be deleted. We will include instructions for how to delete your account on the Website and/or the App. We may update these instructions and our process to delete your account from time to time. Please follow the instructions on the Website and/or the App to delete your account if you would like to do so. Certain data may continue to be stored in our backup systems until regularly scheduled deletions occur. In addition, you acknowledge that Media you have provided which is not directly associated with your user profile (such as Media relating to Merchants, order history), as determined by the Company, will not be deleted. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service. You agree that any termination of your use of the Service or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third-party for any such termination. Sections 3-21 will survive any termination of this Agreement.

14.         Apple.       You hereby acknowledge and agree that Apple: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) and its subsidiaries are each a third party beneficiary of this Agreement with the right to enforce its terms against you directly.

15.         Disclaimers; No Warranties.       THE SERVICE AND ANY MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY, AND ITS LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

16.         Indemnification; Hold Harmless.       You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, purchase of any Products or any other transactions or interactions with Merchants, violation of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.

17.         Limitation of Liability and Damages.       UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM THE SERVICE, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED FIFTY U.S. DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

18.         Arbitration.       Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through the American Arbitration Association (“AAA”). The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In any such arbitration, the parties and AAA must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.

19.         Class Action Waiver.       YOU AGREE THAT ANY CLAIMS SUBJECT TO ARBITRATION UNDER SECTION 18 MUST BE MADE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

20.         Claims.       YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

21.         Miscellaneous.       The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 18 shall be filed only in the state or federal courts in San Francisco, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.

22.         Contact Information.       The Service is provided by LaCarte Inc. If you have any questions, complaints or claims with respect to the Service, you may contact us as follows:

Mailing Address

Phone

E-mail

23.         California Residents.       If you are a California resident, please be aware that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 928-1227.

24.         Non-US Users.       We make no representation that information on the Service is appropriate or available for use outside the United States. Those who choose to access the Service from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws. By using the Service, you consent to having any Media you provide, your Login Credentials and any personal information that you provide as part of the account creation process transferred to and processed in the United States subject to the restrictions on such data as provided in our Privacy Policy LINK posted through our Site from time to time.