Effective: August 3, 2020
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND MASHGIN, INC., A DELAWARE CORPORATION (COLLECTIVELY, “MASHGIN,” “WE,” “US,” OR “OUR”).
Mashgin has online ordering capabilities, which provide an online marketplace connection, using web-based technology that connects you and other consumers, retailers, and/or other businesses. Mashgin’s software enables consumers to place orders for food and/or other goods from various restaurants and businesses (the “Software”). Once such orders are made, the Mashgin software notifies that an order opportunity is available, and the software then facilitates the completion of the order to the consumer. For the avoidance of doubt, Mashgin is not a restaurant, delivery service, or food preparation business.
If you access any of our websites located at https://www.mashgin.com/, use our Mashgin web services, install or use any other software supplied by Mashgin, or otherwise access any information, function, or service available or enabled by Mashgin (each, a “Service” and collectively, the “Services”), or complete the Mashgin account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:
(a) you have read, understand, and agree to be bound by this Agreement;
(b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Mashgin; and
(c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement.
The terms “User” and “Users” refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services.
Mashgin reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
By using the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Mashgin’s Privacy Policy, which is incorporated in this Agreement by reference. Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.
Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:
(a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, Mashgin employees, or our community.
(b) You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
(c) You will only access the Services using means explicitly authorized by Mashgin.
(d) You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
(e) You will not use the Services to cause nuisance, annoyance or inconvenience.
(f) You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Merchant, user, unless Mashgin has given you prior permission to do so in writing.
(g) You will not copy or distribute the Software or any content displayed through the Services, including Merchants’ menu content, for republication in any format or media.
(h) You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
(i) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
(j) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
(k) You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.
(l) You will not use the Services in any way that could damage, disable, overburden or impair any Mashgin server, or the networks connected to any Mashgin server.
(m) You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any Mashgin server.
(n) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Mashgin may use to prevent or restrict access to the Services or use of the Services or the content therein.
(o) You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites.
(p) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
(q) You will not try to harm other Users, Mashgin, or the Services in any way whatsoever.
(r) You will not engage in threatening, harassing, racist, sexist or any other behavior that Mashgin deems inappropriate when using the Services.
(s) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
(t) You will not abuse our promotional or credit code system, including, but not limited to, such actions as redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time users.
(u) You will not attempt to undertake any of the foregoing.
In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.
You understand and agree that Mashgin provides a technology platform connecting you with independent food service providers and others that provide the products offered through the Services (“Merchants”). You acknowledge and agree that Mashgin does not itself prepare food or offer delivery services, and has no responsibility or liability for the acts or omissions of any Merchant. Mashgin is not the retailer of any products offered by Merchants, nor is it in the delivery business or a common carrier. Mashgin provides a technology platform facilitating the transmission of orders by Users to Merchants for pickup or delivery. Mashgin will not assess or guarantee the suitability, legality, or ability of any Merchant. You agree that Mashgin is not responsible for the Merchants’ food preparation or the safety of the food, and does not verify Merchants’ compliance with applicable laws or regulations. Mashgin has no responsibility or liability for acts or omissions by any Merchant.
You agree that the goods that you purchase will be prepared by the Merchant you have selected, and that title to the goods passes from the Merchant to you at the Merchant’s location. You agree that Mashgin does not hold title to or acquire any ownership interest in any goods that you order through the Services.
You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update this information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services. You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent its use by minors and that you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will then notify Mashgin immediately. Mashgin will not be liable for any unauthorized use of your password or User account, and you may be liable for losses, damages, liability, expenses, and fees incurred by Mashgin or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or if Mashgin has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Mashgin thereby has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by Mashgin, or if you have been previously banned from use of the Services.
(a) User Content. Mashgin may provide you with interactive opportunities through the Services, including, by way of example, the ability to post delivery instructions (collectively, “User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post, and/or otherwise transmit through the Services. You hereby grant Mashgin a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sub-licensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute, and/or otherwise use the User Content in connection with Mashgin’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant Mashgin a license to use your username and/or other User profile information to attribute User Content to you in connection with such Uses, without notification or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to Mashgin herein shall survive termination of the Services or your account. Mashgin reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or we consider to be objectionable for any reason. You agree that Mashgin may monitor and/or delete your User Content (but does not assume the obligation) for any reason at Mashgin's sole discretion. Mashgin may also access, read, preserve, and disclose any information as Mashgin reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to User support requests, or (v) protect the rights, property, or safety of Mashgin, its users, and the public.
(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to Mashgin through its suggestion, feedback, contact, forum, or similar pages (“Feedback”) is at your own risk and that Mashgin has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Mashgin a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sub-licensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute, and/or otherwise use such Feedback.
By creating a Mashgin account, you electronically agree to accept and receive communications from Mashgin, or third parties providing services to Mashgin including via email, text message, calls, and push notifications to the cellular telephone number you provided to Mashgin. You understand and agree that you may receive communications generated by automatic telephone dialing systems, which may deliver pre-recorded messages sent by or on the behalf of Mashgin, which may include, but may not be limited to, communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications from Mashgin or third parties providing services to Mashgin, you may change your notification preferences by accessing the Settings in your account.
Mashgin alone (and its licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services, or any intellectual property rights owned by Mashgin. Mashgin names, Mashgin logos, and the product names associated with the Software and Services are trademarks of Mashgin or third parties, and no right or license is granted to use them. You agree that you will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.
(a) Prices. You understand that: (a) the prices for menu items displayed through the Services may differ from the prices offered or published by Merchants for the same menu items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (b) Mashgin has no obligation to itemize its costs, profits, or margins when publishing such prices; and (c) Mashgin reserves the right to change such prices at any time, at its discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final in store totals. In those situations, Mashgin reserves the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement.
(b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. Mashgin has no obligation to provide refunds or credits, but may grant them, in each case in Mashgin’s sole discretion.
(c) Fees for Services. Mashgin may change the fees for our Services as we deem necessary or appropriate for our business, including, but not limited to, Delivery Fees, Service Fees, Small Order Fees, and Surge Fees. Mashgin may also charge merchants fees on orders that you place through the Services, including commissions and other fees, and may change those merchant fees as we deem necessary or appropriate for our business or to comply with applicable law.
You may have the option to request delivery or pickup of alcohol products in some locations and from certain Merchants. If you receive your delivery in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction. The Merchant reserves the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government-issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated.
12. Indemnification
You agree to indemnify and hold harmless Mashgin and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines, and expenses, including without limitation attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to, or resulting from (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty, or covenant in this Agreement; or (d) your violation of any applicable laws, rules, or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit, or proceeding alleging any matter potentially covered by the agreements in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. Mashgin reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mashgin in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation, or concealment, suppression or omission of any material fact in connection with the Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MASHGIN MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
MASHGIN DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, MASHGIN SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
If you violate this Agreement, Mashgin may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.
In addition, at its sole discretion, Mashgin may modify or discontinue the Software or Service, or may modify, suspend, or terminate your access to the Software or the Services, for any reason or no reason at all, with or without notice to you, and without liability to you or to any third party. In addition to suspending or terminating your access to the Software or the Service, Mashgin reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Mashgin or any third party provider as a result of this Agreement or use of the Software or Services.
(b) Choice of Law. The terms, interpretation, and enforcement of this Agreement shall be governed by the laws of the State of California. The Parties hereby consent to the personal and exclusive jurisdiction and venue of the Federal courts located in Santa Clara County, California.
(c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. That provision shall then by fully severable to the extent permitted by law, and this Agreement, and its terms, shall then be construed and enforced as if the unenforceable provision had never been a part of the Agreement.
(d) Consumer Complaints. In accordance with California Civil 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
(e) Notice. Where Mashgin requires that you provide an email address, you are responsible for providing Mashgin with your most current email address. In the event that the last email address you provided to Mashgin is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Mashgin’s dispatch of the email containing such notice will nonetheless constitute effective notice.
(f) Electronic Communications. For contractual purposes, you (1) consent to receive communications from Mashgin in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mashgin provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
(g) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may however be assigned by Mashgin without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
(h) Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and Mashgin relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.
