Feasterly Customer App User
Terms and Conditions Agreement
By downloading and using the FEASTERLY CUSTOMER APP, current and future Customers duly acknowledge their full and complete acceptance that the prevailing Terms and Conditions Constitute a Legally Binding Agreement (“Agreement”) by and between ALL INDIVIDUAL USERS and RUMBLING TUMMY, LLC. (hereinafter “RT”), a Nevada Limited Liability Company, owners of FEASTERLY.COM and various FEASTERLY APP PLATFORMS along with all other unnamed RT SUBSIDIARIES (together referred to herein as, “Feasterly”, “We”, “Us” or “Our”).
1. Customer App Terms Acceptance
RT delivers proprietary multiple platform app based consumer technology services that facilitates marketing, sale and, when ordered by Customers of Merchant, fulfillment of Merchant Menu Item and other Merchant product orders (individually referred to as “Item” or together referred to as “Items”) from Merchants to Customers looking to purchase Items for pick-up and or delivery of said Items from Third Party Delivery Service Providers (as defined herein), that collect Items (complete with Merchant Customer transaction code) from Merchants for delivery of said Items to fulfill Customer orders (“Feasterly Network”).
Third Party Delivery Service Providers (“Delivery Service”) are independent contractors attached to a driver service company that is contracted to but otherwise unrelated to RT, and as such, retain their right to refuse to accept and or deliver any Item at their sole discretion and or as otherwise specifically detailed herein, with specific reference including, but not being limited to, Clause 15 Transactions Involving Alcohol.
Customers may request access to the Feasterly Network to connect with Merchants with a view to purchasing Items directly from Merchants by way of services provided by RT: Feasterly Customer App for Merchant Customer pick-up and Merchant Ordered Delivery (each, a “FEASTERLY PLATFORM” described in more detail below). By electing to use a FEASTERLY PLATFORM, ALL Customers agree to accept any relevant FEASTERLY PLATFORM Addenda as follows:
- i) SALES PLATFORM: Customers may purchase Items produced and presented for sale by Feasterly Merchant Members through the FEASTERLY PLATFORM, whereby Merchant’s Items are presented care of the Feasterly Customer App to Customers who access and request on-demand delivery by Third Party Delivery Service Providers (see above).
- ii) NON-DELIVERY: Merchant may sell Items through the “NON-DELIVERY FEASTERLY PLATFORM,” whereby Merchant’s Items are presented care of the Feasterly Customer App to Customers for pick-up at Merchant’s listed Location, i.e.: Third Party Delivery Service Providers play NO PART WHATSOEVER in the sale of Items through Non-Delivery FEASTERLY PLATFORM.
iii) MERCHANT PROVIDED DELIVERY: Merchant may sell Items designated for delivery whereby Merchant’s Items are presented care of the Feasterly Customer App to Customers that access and request on-demand delivery where the Merchant designated that said delivery will be provided “in-house” by Merchant Delivery Staff (that is, arranged independently of RT Third Party Delivery Service Providers) with the proviso that all such sales remain subject to the “Feasterly Merchant Provided Delivery Terms”.
Feasterly is not a restaurant or delivery service provider or food preparation business.
If you access any of our websites located at https://www.feasterly.com/, install or use our Feasterly mobile application, install or use any other software supplied by RT in the Feasterly name, or access any information, function, or service available care of the FEASTERLY PLATFORM (“Service” or collectively “Services”), or complete a Feasterly account registration process, you, your heirs, assigns, and successors ( “you” or collectively “your”) hereby irrevocably warrant and or accept that:
(a) You have read, understand, and agree to be bound by this Agreement;
(b) You are of legal age in your resident jurisdiction, at time of download, to form a binding contract with Feasterly;
(c) You are duly authorized to enter into this Agreement personally or, if applicable, on behalf of any organization on whose behalf you have created an account and are thus assumed as being duly authorized to bind said organization to the Agreement.
The terms “User” and “Users” refer to all individuals who access or use the FEASTERLY PLATFORM Services, including without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representative/s. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement or do not satisfy subclauses (a), (b) or (c) above in this Clause 1, we hereby exercise our reserved right to deny access or use of the FEASTERLY PLATFORM or any part thereof.
Feasterly reserves its rights to amend this Agreement or its policies relating to proprietary Software or Feasterly Services at any time, effective upon posting of an updated version of this Agreement through the Services, as update from time-to-time on the Feasterly App and or feasterly.com. As Feasterly is not required to inform you of directly of any such amendments, you should regularly review this Agreement. Note that continued use of the Feasterly App subsequent to the date of any changes acknowledges your acceptance of any and all current and or previous changes, as specifically confirmed in applicable portions of Clause 12(i).
3. Additional Terms
4. Rules, Regulations and Exclusions
Without limiting other rules, regulations and exclusions detailed herein, by using Services you agree that:
(a) Services will only be used for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; you will not transmit pornographic material; and you will not engage in other conduct that denigrates or harms other Users, Feasterly employees, Merchant Providers or our community.
(b) Services will only be used in accordance with, and acceptance of, all applicable laws including copyrights, trade secrets or other rights of any third party, including privacy rights.
(c) Services will only be utilized in the manner and means specifically permitted Feasterly.
(d) You will not use an account other than the account set up in your name. You will not falsely present yourself as another person or entity or falsify documents (inclusive of electronic documents) to improperly represent the true origin of content you transmit care of or as a part of using Services.
(e) Services cannot be utilized to annoy, inconvenience or cause financial distress to individuals or entities.
(f) Services cannot be utilized by you for any commercial purpose, including but not limited to promoting and or advertising or soliciting or selling to any Merchant, User or Contractor in any manner without specific and written RT permission.
(g) Software and or any content displayed through the Services by you under any circumstance. This includes but is not limited to any Merchant’s menu content or reviews within or on any form of print or media.
(h) You warrant to only provide information when registering an account, or when otherwise communicating through enrolment or when using the Feasterly App that is complete and accurate. Accordingly, you acknowledge and accept sole responsibility to promptly notify Feasterly of any material information changes and provide whatever proof of identity we may deem reasonably to request as a result of the notified changes.
(i) Your account password and or identification credentials we provided to allow access to and use of our Services will be kept safe and secure at all times.
(j) Software and Services will only be used by you for the purposes intended by Feasterly, you acknowledge that you hold no right or authority to access either for nefarious uses or purposes and will certainly not directly or indirectly seek to personally use, resell, license or transfer Software, Services or associated content within Services to any third party.
(k) Services will not be accessed by you for the purpose of negatively impacting, amended the intended uses, damage, disable or impair any portion of the Feasterly network or Feasterly hardware (servers) for any reason or purpose whatsoever.
(l) In addition to (k) you acknowledge that any unauthorized testing of the Feasterly system security or authentication measures as well as network vulnerability is strictly forbidden.
(m) You will not attempt to develop and or apply any form of link or means of unauthorized access to any portion of the Feasterly platform (including websites or App store listing) for any reason whatsoever.
(n) You will not attempt any kind of data incursion and or date retrieval or removal from any portion of the Feasterly network.
(o) Should you discover any errors, bugs, means or occurrences of unauthorized access or any other form of breach to our system our intellectual property rights, you agree to notify us immediately.
(p) Our promotional or credit code systems will not be used for any other purpose other than that intended by Feasterly, you agree to not attempt redemption coupons in a manner or more often than permitted by Feasterly and will not falsely claim special offers and or benefits intended for new customers by opening multiple accounts.
(q) You will not attempt to undertake any of the foregoing.
In the event we believe or determine a breach of any of 4(a) through to and including 4(q), RT reserves the right to suspend or permanently deactivate your account at our discretion, without notification or explanation.
5. Contractors and Merchants Operate Independently of Feasterly
You understand and agree Feasterly provides a technology platform connecting you with independent food service providers and others that provide the products offered through the Services (“Merchants”) and a group of independent third-party contractors who provide delivery services (“Contractors”). You acknowledge and agree Feasterly does not prepare food or act as a delivery service provider, accordingly, Feasterly has no responsibility or liability for the acts or omissions of Merchants or any Contractor. Feasterly provides a technology platform limited to the facilitation and transmission of orders by Users to Merchants for pickup by you or delivery to you by Contractors. Feasterly is not required to and will therefore not determine or guarantee the character, suitability, legality or ability of any individual Contractor or Merchant. You agree that Feasterly is not responsible for Merchant food preparation processes or food safety protocols, further, as Feasterly empowers Merchants to manage their own menus, Feasterly is unable to warrant, determine and or grade whether any photographs or images displayed care of the Services are an accurately reflection of the food prepared by a Merchant and or that same will presented in that same manner once delivered by Contractor. Further, Feasterly is not empowered or affiliated with local authorities and is therefore unable to verify whether any particular Merchant is in full compliance with applicable laws or regulations. With the independent status of Merchants and Contractors now quantified, Feasterly has no responsibility or liability for any misrepresentations, acts and or omissions by any Merchant or Contractor. You agree all the Items you purchase will be prepared and or supplied by the Merchants you select, that title to the Items from the Merchant directly to you when you choose to pick-up from a Merchant’s location, and that, for delivery orders, the Contractor will follow the instructions you provide in order to facilitate the delivery of Items to your designated delivery location. Therefore, in relations to Items you order for delivery, by accepting the Feasterly delivery process you agree that neither the Contractor nor Feasterly holds title to, or acquires any ownership interest in, any Items you order from Merchants through the Services.
6. Feasterly App Registration, Access and Use
Access to and prevailing use of Services care of the Feasterly App requires you to register an account for your exclusive use. As stipulated in Clause 4, you must provide accurate, current and complete information at the time of the original registration process and at all other times thereafter when you use the Services. You agree to update the information to keep it accurate, current, and complete for the entire period you choose to use the Services. You accept sole authority to use only the account you create, you accept full responsibility for setting and keeping safe the password you select, and we accept, as appropriate in order to access said account as you are solely and fully responsible for all your activities and actions that occur within your account. You agree to monitor your account to prevent use by minors and that you will accept full responsibility for any unauthorized use of your account and or the password you use to access your account. You are not permitted to authorize anyone to use your account, you therefore may not assign or transfer same to any other person or entity. You agree to immediately report any suspected unauthorized access to, or use of, your account or password. Feasterly is not and will not be liable for losses, damages, liability, expenses, and fees incurred by Feasterly or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use or not; this liability will invariably be yours alone. If you provide any information that is false, purposely or accidently inaccurate, not current, or incomplete, or Feasterly has reasonable grounds to suspect your information is untrue, inaccurate, not current, or incomplete (whether in part or wholly), Feasterly reserves its right to suspend or terminate your account and refuse any and all current or future use of the Services in any manner. We reserve the right to adopt an increase level of security protocol at our discretion, accordingly, we reserve the right to require you to use one or more additional verifications processes and or to select an updated password to make future attempts to login ahead of using the Feasterly App to access Services. Any Party that has had an account cancelled or their individual rights to use the Feasterly App are removed by RT agrees to not attempt creation of an alternate account or attempt to use any of the Services that have previously been denied by RT. Any such attempt discovered by Feasterly will result in the immediate cancellation of any such subsequent accounts without notification or a requirement to detail cause.
7. Registered Account Content
(a) Your Account Content: From time to time Feasterly may provide interactive opportunities through the Services, including but not limited to an invitation to voluntarily provide Merchant reviews and or Contractor ratings (“User Content”) to Feasterly. You warrant that you are the owner of and or have a right to provide the User Content you present to Feasterly through the Services. You warrant that any User Content transmitted through the Services: (i) does not include content you know to be false, intentionally misleading in part or whole and or demeaning of the rated party; (ii) are your personal opinions, none of which violate any third-party rights, including but not limited to; trademarks, patents, copyrights, proprietary business interests, individual or group’ rights to privacy, promotional rights or any other intellectual property; (iii) does not contain any material that is pornographic and or unlawful; (iv) does not violate any law or regulation (local, state, federal or otherwise); and or (v) is not contrary to the Terms or Conditions of this Agreement. By voluntarily providing User Content you accept, without caveat or reservation, that Feasterly is granted a perpetual, irrevocable, fully transferable, fully paid, fully licensed, royalty-free, non-exclusive, multi-jurisdictional and or sublicensable right to use, copy, display or choice NOT to display, publish or a choice NOT to publish, amend or remove entirely, promote, translate, distribute and or otherwise utilize the User Content in connection with Feasterly’s business or promotion of same, in any format currently known or future derivate of that may be contemplated hereafter in the future (“Uses”), without you being notified and or requiring your additional approval of any kind. This right freely granted by you includes a license to use your username, first name and last initial, along with any and all other User profile information in part or whole, including without limitation, all your past Merchants ratings and Contractor grades, to attribute User Content to you in connection with such Uses, without notification to you or approval by you. Rights to the license granted and confirmed herein as delivered to Feasterly herein will survive your voluntary election to remove yourself from the Feasterly App platform and or any decision by Feasterly to terminate your account and cancel your use of the Services. Feasterly reserves the right in its sole discretion to NOT publicly display User Content, and or to instead supply User Content or details thereof to Merchants and or Contractors for the express purpose of maintaining and or improving the quality of their services. Feasterly also reserve the right to remove or disable your access to provide any User Content or amend previous User Content from the Services or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish for any reason. You agree that Feasterly may monitor and or delete User Content for any reason at our sole discretion. Feasterly may also access, read, preserve, and disclose any information as Feasterly reasonably believes is necessary to (I) satisfy any applicable law, regulation, legal process, or governmental request, (II) enforce this Agreement, including investigation of a potential violation or violations, (III) seek out, assess, and thus prevent any form of suspected fraud, security incursion and or technical issues, (IV) review, assess and tend to User requests for support, or to (V) ensure all assets, rights and or operational protocols of Feasterly, its Users and the public are adequately protected.
(b) Volunteered User Advice: Any and all submissions of ideas, suggestions and or business propositions made available to Feasterly, whether that be directly through User Content or indirectly by referencing Feasterly care of your use of any other medium such as public forums or print media or televised media (“Feedback”) is made and or presented at your own risk with the clear knowledge that Feasterly has no obligations or mutual liability (including without limitation, obligations of confidentiality) with respect to your volunteered Feedback. You represent and warrant that you have all rights necessary to submit such Feedback and, as in 7(a) you hereby grant to Feasterly a perpetual, irrevocable, fully transferable, fully paid, fully licensed, royalty-free, non-exclusive, multi-jurisdictional and or sublicensable right to use, copy, display or choice NOT to display, publish or a choice NOT to publish, amend or remove entirely, promote, translate, distribute and or otherwise utilize this Feedback.
(c) Volunteered Merchant Reviews and Contractor Ratings: Any and all Merchant Reviews (“Reviews”) and Contractor Ratings (“Ratings”), whether requested by Feasterly or voluntarily submitted by you, are together regarded and considered inclusive of User Content and are thus governed in the same manner by this Agreement. Though available for use at our sole discretion, Merchant Reviews and Contractor Ratings are not endorsed by Feasterly and are thus not representative of the opinions or views of the principals or staff of Feasterly or the business practices of RT, Feasterly or either’s affiliates. Irrespective of whether Feasterly chooses to withhold public publication and or only promote select Merchant Reviews and Contractor Ratings in part or whole, jointly and or in private with either the Merchants and or Contractors, Feasterly denies any and all liability for Merchant Reviews and Contractor Ratings or for any claims for economic loss that may be regarded as having resulted from any Merchant Reviews and Contractor Ratings made available care of the Services. Because we strive to maintain a high level of integrity with respect to Merchant Reviews and Contractor Ratings, posted or otherwise, made available through the Services, you agree that: (i) your Merchant Reviews and Contractor Ratings are reflective of your own actual experiences on the Feasterly App; (ii) your Merchant Reviews and Contractor Ratings are not compiled or delivered in a manner that contravenes Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising; or (iii) your Merchant Reviews and Contractor Ratings are not prepared and presented in return for a payment of currency, any alternate form of financial payment and or alternate form of reward, such as free Items or other benefits originating from Merchants or a Contractor.
Notwithstanding the general terms contained in this Clause 7, Feasterly reserves our sole right to remove any and all User Content without cause and or notification of same to you.
8. Feasterly Communications
By downloading the Feasterly App and or subsequently creating your Feasterly account, you acknowledge and agree to receive communications from Feasterly, Contractors or third parties providing services to Feasterly including via email, text message, calls and push notifications to the current mobile telephone number you have provided to Feasterly within your registered account. You accept that communications may be initiated by Feasterly by way of a personal telephone call or generated by automated telephone systems and or which will deliver prerecorded messages sent by or on behalf of Feasterly, its affiliated companies and or Contractor, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates associated with your mobile telephone account may apply. NOTE: Any party that does not wish to receive promotional emails or promotional text messages (noting calls or text messages from Merchants seeking confirmation of Item orders or calls or text messages from Contractors delivering Item orders are not regarded as promotional) has the option to change alter notification preferences in the Feasterly App or by electing to utilize “opt out” options provided by Feasterly within our promotional emails.
9. Feasterly Email Verification of User Terms and Conditions Acceptance
As stated at the opening of the Agreement, by downloading and using the FEASTERLY CUSTOMER APP and or creating a Feasterly account, you agree to the terms and conditions of the Agreement and automatically consent to the use of an electronic record to simultaneously document your acceptance of said agreement. You may however choose to withdraw your consent to the use of this form of recordation and request a formal supplemental confirmation of your user consent verification of your acceptance of this Agreement from Feasterly by emailing Feasterly at the email address ‘privacy@Feasterly.com’ with “Provide Supplemental Confirmation of User Consent” in the subject line. To receive the requested verification that will follow you require a computer or mobile phone with internet access, web browser and access to the Email account provided as a part of your current Feasterly Account and, either a printer to print, or, storage space on the device of your choosing to store your requested Feasterly verification. Feasterly has no obligation to provide you with or compensate you for any of the items you require to receive the type of verification request contained in this Clause 9.
10. Intellectual Property Ownership
Feasterly alone holds outright ownership title and usage rights as well as the total beneficial interest, including all related intellectual property rights, in and of all facets of the Feasterly App Software and its Services. Feasterly retains sole right to allocate these rights, in whole or in part, to any current (if applicable) or future Licensors, at its absolute discretion and without notice to Users. This Agreement does not constitute a sale of any kind, it does not provide any form of ownership conveyance relative to the Software or the Services, in whole, part or otherwise. You are not granted, licensed or provided any rights to use intellectual property owned by Feasterly, whether specified herein or otherwise. The Feasterly name, logos, Platform and or App names and or the product names associated with the Software and Services are trademarks of Feasterly and no right or license is delivered to you, or any other unrelated party, to use them. Your acceptance of this Agreement includes your warranty that you will not use, remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services.
11. Your Payment Responsibilities
(a) Service Pricing & Charges: You Agreement includes your acknowledgement that: (i) though the prices for menu or other items displayed through the Services are entered and managed at the discretion of and by the Merchants, those Merchants reserve the right to vary prices published by Merchants for the same menu or other items and or from prices available within their bricks and mortar location and or within third-party websites or mediums that are not Feasterly, and that such prices may not be the lowest prices at which the menu or other items are sold; (ii) Feasterly has no obligation nor requires Merchants to itemize its costs, profits or margins when publishing such prices; and (iii) Feasterly reserves the Merchant right to change such prices at any time, at their discretion. For certain transactions, the subtotals shown at checkout may not be final and are subject to final higher or lower pricing depending process and or means of delivery and or any final in-store totals outside of Feasterly control. In those situations, Feasterly reserves the right to amend your payment method to match the final price after checkout, noting that any such amendment requires final verification of same form Feasterly. You are liable for all transaction taxes (local Sales Tax) on the Services provided under this Agreement, not inclusive of taxes incurred by Feasterly on its income. Should the charge to your payment method differ from the total amount, including subtotal, the service fee and tip displayed to you at checkout and or after tip is selected, Feasterly reserves the right to make an amendment to the charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and or after tip is selected. All payments are processed by Feasterly (or its preferred payments processor) using the default payment method designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your Use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.
(b) No Refund Policy: Though Feasterly reserves its right to provide refunds and or credits at their sole discretion, any and all charges paid by you for completed and delivered orders are, by default, regarded as final and non-refundable.
(c) Promotional Offers and Transaction Credits: As stipulated in 10(b), Feasterly may from time-to-time make promotional offers with different features and or at variable pricing adjustment to any User, at its sole discretion. All promotional offers are planned and or contemplated without obligation, all are offered subject to the terms of this Agreement and may be valid only for certain Users stipulated in each applicable offer. You agree that promotional offers: (i) are available for use by the intended Users only, in strict accordance with intended purpose of each offer, and subject to all applicable laws; (ii) no offers can be duplicated, redeemed for cash or cash equivalent, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Feasterly; (iii) are subject to the specific terms that Feasterly establishes for such promotional offer; and (iv) are not valid for use after the date indicated in the offer. Feasterly reserves its right to withhold or deduct credits or benefits obtained through a promotion in the event Feasterly determines or believes the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. Feasterly reserves the right to modify or cancel an offer at any time without notice. It is agreed and understood Feasterly may change and or remove Promotional Offers and Credits at any time. Feasterly may also elect to provide User App credits, which can be used for the Services. Any such credit must be used exclusively for Item purchase within 6 months of the applicable credit issue date. All credits will expire and be removed from your account at the end of the 6th month following the credit issue date.
(d) Service Fee Policy: Feasterly may change a fee for our Services as we deem necessary or appropriate for our business, our base fees are limited to Delivery Fees and set Service Fees. Feasterly does not charge Small Order Fees, Advertising Fees and or Surge Fees.
(e) Feasterly Gift Cards: Except as provided below, Gift Cards may be redeemable towards eligible orders placed on www.Feasterly.com in your account within the Feasterly app. Gift Cards are made available and provided by RT only, none of the RT Gift Cards are redeemable for cash, except when required by applicable law.
12. Dispute Resolution
This Clause 12 contains provision outlining the only manner in which potential claims that may arise between either or both you and Feasterly and the particular manner in which those claims can be resolved, INCLUDING, WITHOUT LIMITATION, any claims that may have a foundation originating on or around a date prior to the effective date of this Agreement, that being the Feasterly APP download date, that being the Agreement Acceptance Date. Moreover, this Clause 12 presents the Arbitration Agreement, governing arbitration rules as well as requirement processes, which include but are not limited to the requirement that, with limited exceptions, all disputes to be submitted for final and binding Arbitration Decision. Particular points of process stipulate that; (1) You agree and accept that you will only be permitted to pursue claims and seek relief against us on an individual basis, that is, not as a Plaintiff or Class Member in any class or representative action or proceeding, except as set forth in Clause 12(g); and (2) You are waiving your right to seek relief in a court of law.
READ THIS SECTION 12 CAREFULLY. IT REQUIRES ALL DISPUTES WITH FEASTERLY TO BE SETTLED BY WAY OF ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 12 OF THIS AGREEMENT IS REFERRED TO AS THE “ARBITRATION AGREEMENT”.
(a) Arbitration Agreement Scope: You agree that any dispute or claim relating in any way to your access or use of the Services as a User of the Services, to any advertising or marketing communications regarding Feasterly or the Services, to any products or services sold or distributed through the Services that you received as a User of Feasterly Services, or to any aspect of your relationship or transactions with Feasterly as a User will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Feasterly may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
(b) Preferred Initial Resolution: It is agreed and understood that any Arbitration process will be preceded by an informal good faith informal effort to resolve any and all disputes, a process that is mutually accepted by both parties as a means to reach a prompt, low-cost and mutually beneficial outcome. This informal approach will involve a personal meeting between you and Feasterly, by way of telephone or video tele-conference, with the mutual goal of making an ‘in good-faith’ effort to resolve informally any claim covered by this mutual Arbitration Agreement. You are welcome to have counsel participate in this initial conference, though this will not preclude you from fully participating in the conference. The Claimant (party initiating the claim) must give notice to the other party in writing of its, or their intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Feasterly of your intent to initiate an informal dispute resolution conference, we request that you send an email to the address ‘firstname.lastname@example.org’ with the body of the email including: your name, mobile telephone number associated with your Feasterly account, the email address associated with your Feasterly account and a description of your claim including the dates/details of applicable transactions. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
(c) Arbitration Designation and Rules: This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) in all respects. If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 12(b). If this notice is being sent to Feasterly, it must be sent by email to the counsel who represented Feasterly in the informal dispute resolution process, or if there was no such counsel then by mail to General Counsel, at 401 Ryland St, Suite 200-A Reno NV 89502. Details of the Arbitrator will be provided in writing following receipt of your letter, this reply will provide reconfirmation of the arbitrator rules confirmed herein. At the minimum, Arbitration demands must include (1) the name, mobile telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) signature of party seeking arbitration.
(d) Arbitrator Authority: You have agreed to have an arbitrator hear and rule on your claim. Accordingly, no federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and Feasterly. Except as expressly agreed to in Section 12(g) of this Agreement, the arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement and this particular Arbitration Agreement that forms a part of that Agreement. The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award or decision not award is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Feasterly.
(e) Waiving of All Rights to Jury Trial: As stipulated herein, by entering into this Agreement you acknowledge and agree that both you and Feasterly have waived any and all constitutional and statutory rights to sue in court and receive and a trial before a Judge or jury trial. You and Feasterly are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 12(a) above. Note: There is no judge or jury in arbitration and court review of an arbitration award is limited.
(f) Waiver of Class or Consolidated Actions: YOU AND FEASTERLY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, EXCEPT AS SET FORTH IN SECTION 12(G). CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER EXCEPT AS SET FORTH IN SECTION 12(G). If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Feasterly is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20. This provision does not prevent you or Feasterly from participating in a class-wide settlement of claims.
(g) Individual Arbitration Detail and Frivolous Claim Fee-Shift: To increase efficiency of resolution, in the event 25 or more similar arbitration demands against Feasterly, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 60-day period, the arbitration provider shall (i) require claimants to serve individualized arbitration demands, each of which must clearly identify the claimant, their legal claims, the requested relief, and an express authorization by the claimant to bring the arbitration demand.; and (ii) acknowledge and accept the arbitrator will be free to determine and to award fees and costs to the prevailing party if the arbitrator finds that the losing party filed a frivolous claim.
(h) Survival: This Arbitration Agreement will survive any termination of your relationship with Feasterly.
(i) Modification: It is agreed and understood that, should Feasterly make any updates, amendments and or material changes to this Arbitration Agreement, it will not apply to any individual claim you may have previously made against Feasterly.
13. Effect of Third-Parties
(a) Third-Party Assets: Feasterly Services may include or originate from links to third-party websites and or applications and or advertisements (together, “Third-Parties”). When you elect to take actions causing you to leave the Feasterly platform (App and or website) by “clicking” links to Third-Parties, Feasterly will not and is not required to advise of an exit from our Service Platform and or advise you of the unrelated terms and conditions (including privacy policies) that you are now subject to from another website or destination. As these Third-Parties are not under the control of Feasterly or by definition are not an affiliated to Feasterly, then Feasterly is not responsible for or required to review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Parties or their content, products and or services. You alone are responsible for any and all reasonable investigation any party might regard as necessary or appropriate before contemplating and or proceeding with any kind of interaction and or transaction with Third-Parties.
(b) App Stores: You acknowledge and agree that the availability of the Software and accompanying Services are dependent made available care of the Third-Parties from which you elected to access an application license, for example, Apple or Android app stores (“App Store”). As noted previously herein, this Agreement is between you and Feasterly, it has no relationship or legal connection with the App Store. Feasterly alone is responsible for the Software and Services, including the mobile applications, the content thereof, maintenance, support services and associated warranties, along with addressing any claims relative thereto, including but not limited to; product liability, legal compliance and or intellectual property infringement. Use of the Software and the Services requires access to and use of a wireless network, it is you, not Feasterly, that is responsible for the fees associated with your access to and use of networks. By using the App Store, you alone are required to and are responsible for your undertakings to comply with any and all terms, conditions and policies set by App Stores. You represent and warrant that you are not located outside of the United States of America. You acknowledge and agree that each App Store and their affiliates are intended third-party beneficiaries of this Agreement and thus have the right to enforce the terms and conditions of this Agreement in addition to their own.
14. Independent Social Media Platforms
Feasterly maintains certain social media pages for the benefit of the Feasterly community. By posting, commenting, or otherwise interacting with these pages, you agree to abide by the guidelines set out herein whilst also acting in accordance with all the terms, conditions, policies and procedural rules set by the unrelated, third-party owners and operators of each Social Media Platform.
15. Transactions Involving Alcohol
You may have an option to include the delivery of alcohol as a part of the Service in select locations and from various Merchants. All orders requiring delivery in the United States including alcohol products may only be made and receipted by you IF YOU ARE 21 YEARS OF AGE OR OLDER and must therefore produce a valid government-issued identification proving your age to the Contractor delivering the alcohol products for their verification and warrant that the recipient will not already be in a state of intoxication at the time of receiving such products. IN THE EVENT YOU CANNOT PRODUCE A VALID GOVERNMENT ISSUED FORM OF IDENTIFICATION, OR, IF THE NAME ON THAT SAME IDENTIFICATION DOES NOT MATCH THE NAME ON THE DELIVERY ORDER, OR, IN THE EVENT THE SUBJECT IDENTIFICATION CANNOT BE VERIFIED AS CURRENT/GENUINE, OR, YOU ARE VISIBLY INTOXICATED, THE CONTRACTOR RESERVES THE RIGHT TO REFUSE DELIVERY. If the Contractor is unable to complete the delivery of alcohol products to the Customer of record for one or more of these reasons, you agree to waive any and all claims for a refund and or compensation whilst also agreeing to pay a RETURN FEE of no less than $25 (which will be deducted, without your additional permission, from the payment form originally used to purchase the Items) to cover the Contractor expense and associated transaction fee expenses incurred by Feasterly in having the entire order returned to Merchant for restocking and or disposal by Merchant.
You agree to indemnify and hold harmless Feasterly 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 and 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. Feasterly 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 Feasterly 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.
17. Disclaimer of Warranties
It is understood and agreed to the fullest extent of the law, that you have acknowledged use of the software and services was is entirely AT YOUR OWN RISK. Changes and or updates to the software and services can and will be made from time to time, any occurrence of which can at any time be made without notice to you. FEASTERLY 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. Feasterly does not warrant that either the software, service or updates thereto will operate without errors and or partial glitches that may affect performance or that either are free of viruses or harmful malware. As the decision to use the software and or services was yours alone to make, any interaction you choose to make with the software and or services that results in one or more of your electronic devices requiring servicing and or total replacement of the equipment, data loss and or unexpected depletion of your data IS YOUR RESPONSIBILITY ALONE, FEASTERLY IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY OF LOSSES, ACTUAL, IMPLIED OR OTHERWISE, THAT YOU MAY HAVE INCURRED AS A RESULT OF YOUR DECISION AND OR ACTUAL USE.
18. Network Delays and or Device Failures
19. Limitations of Liability
(a) General: It is understood and agreed that RT founded Feasterly and its App with a view to providing you with Services that are simple, efficient and, above all, low cost. Accordingly, you acknowledge a clear and obvious accompanying premise for a limitation on remedies and liabilities set forth herein are necessary to ensure the Software and Services remain simple, efficient and at a low cost for all that choose to use it.
(b) Maximum Liability: To the fullest extent permissible by law, FEASTERLY’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND OR DUE FROM YOU TO FEASTERLY IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
(c) Disclaimer of Certain Damages: To the fullest extent permissible by law, with the only proviso being you are you are not a resident of New Jersey, FEASTERLY SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE).
20. Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Feasterly agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County if you are a California resident, and in the United States District Court for the District in which you reside if you are not a California resident.
If you violate this Agreement, Feasterly, at its sole discretion, may modify or discontinue either or both the Software and or Service, or suspend or terminate your access to same for any reason, with or without notice or explanation to you and without liability to you or any other party. Further, Feasterly reserves all rights available to us under prevailing law, including without limitation, pursuing civil, criminal actions and or injunctive relief. These rights this Agreement will remain enforceable against you even after termination of your rights to use Feasterly Software or Service.
22. Procedure for Making Claims of Copyright Infringement
It is Feasterly’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Feasterly by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied in its entirety and posted on the Services in a way that constitutes copyright infringement, please provide us with the following information: (a) details and proof of identification and or appointment of the party/parties authorized to act on behalf of copyright owner; (b) details of copyrighted material in question; (c) manner and or location of where you believe the infringing has or is occurring; (d) your contact details (address, mobile telephone and e-mail); (e) your written stating that you belief in good faith that the suggested use has in fact occurred without permission of the copyright owner and or the law; and (f) your acknowledgement, under penalty of perjury, that the subject claim is accurate and made by you in your capacity as copyright owner or as authorized agent for copyright owner, with all packaged and presented to attention of: General Counsel, Rumbling Tummy, LLC., Rumbling Tummy, LLC. 401 Ryland St, Suite 200-A, Reno NV 89502 USA.
(a) No Joint Venture or Partnership: No joint venture, partnership, employment, or agency relationship exists between you, Feasterly or any Merchant or Contractor or third-party provider as a result of this Agreement or use of the Software or Services.
(b) Applicable Law: This Agreement is governed by the laws of the State of Nevada consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
(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.
(d) California 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) Accessing and Downloading the Application from iTunes: The following applies to any Software accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”):
(1) You acknowledge and agree that (i) this Agreement is between you and Feasterly only, and not Apple, and (ii) Feasterly, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(3) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Feasterly and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Feasterly.
(4) You and Feasterly acknowledge that, as between Feasterly and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(5) You and Feasterly acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Feasterly and Apple, Feasterly, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(6) You and Feasterly acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(7) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
(f) Notices: Where Feasterly requires that you provide an e-mail address, you are responsible for providing Feasterly with your most current e-mail address. In the event that the last e-mail address you provided to Feasterly is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Feasterly’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
(g) Electronic Communications: For contractual purposes (and without affecting your statutory rights), you (1) consent to receive communications from Feasterly in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Feasterly 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.
(h) Transfer and Assignment: This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Feasterly 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.
(i) 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 Feasterly relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.
24. Contact Information:
Feasterly welcomes your questions or comments regarding the Feasterly Consumer Terms and Conditions: