Terms Of Use
Effective: June 27, 2022
Please read these Terms of Use (the “Agreement”) carefully.
AppInAll LLC. and its subsidiaries and affiliates (“AppInAll,” “we,” “our,” or “us”) own and operate certain websites, including related subdomains; our mobile, tablet and other smart device applications; application program interfaces; in-store kiosks or other online services; other tools, technology and programs (collectively, the “Platform”) and all associated services (collectively, the “Services”); in each case, that reference and incorporate this Agreement.
This Agreement constitutes a contract between you and us that governs your access and use of the Platform and Services. What does that mean? It means that by accessing and/or using the Platform or our Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you agree to all the terms and conditions of this Agreement. If you do not agree, do not access and/or use the Platform or Services. As used in this Agreement, “you” means any visitor, user, or other person who accesses our Platform or Services, whether or not such person registered for an Account (as defined below). Unless otherwise agreed by AppInAll in a separate written agreement with you or your authorized representative, the Platform is made available solely for your personal, non-commercial use.
IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH APPINALL, NO MATTER WHEN ARISING OR ASSERTED, THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND APPINALL EACH WAIVE THE RIGHT TO A TRIAL BY JURY. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS MORE CIRCUMSCRIBED DISCOVERY AND APPELLATE REVIEW THAN THERE WOULD BE IN COURT. YOU ALSO WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST APPINALL, WHETHER NOW PENDING OR FILED IN THE FUTURE. THERE ARE PROPOSED CLASS ACTIONS OR REPRESENTATIVE ACTION PROCEEDINGS PENDING AGAINST APPINALL, AND THIS AGREEMENT APPLIES TO THEM UNLESS YOU OPT OUT AS DESCRIBED IN THE “DISPUTE RESOLUTION” SECTION BELOW. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
PAYMENT AND OUR CREDIT POLICY
Certain features of the Platform, including, without limitation, the placing or receipt of orders, may require you to make certain payments, including commissions or other fees. When paid by you, these payments are final and non-refundable, unless otherwise determined by AppInAll. AppInAll, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged.
AppInAll will charge, and you authorize AppInAll to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, AppInAll may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. In the event AppInAll advances payment for any of your orders placed via the Platform (e.g., if your corporate account has a line of credit), AppInAll may separately send you invoices for payment of those advanced amounts. In the event that you fail to pay such invoices within thirty (30) days of the date of such invoice (the “Payment Due Date”), you grant AppInAll the right, but not the obligation, to charge the credit card you provide with your Account at any time after any Payment Due Date, unless prohibited by law.
Please note, you are unable to complete checkout with only gift card information. In all events, you are required to provide another form of payment to submit an order, even if this payment method is not charged. Also, if you are a campus user and you opt to pay for a purchase with your stored-value card, on certain campuses, (i) AppInAll will charge such purchase to your stored-value card and will charge any applicable fees to either your credit card or other payment on file with us, and (ii) you agree that AppInAll may be unable to refund a purchase to your stored-value card and may, in its discretion, provide a refund through an alternative method.
AppInAll reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Services at any time, and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for Merchant food and beverage items. You understand that the prices for menu items displayed through the Services may differ from the prices offered or published by Merchants for the same menu items, whether offered by the Merchant directly or on third-party websites. You also understand that such prices may not be the lowest prices at which the menu items are sold. AppInAll’s white label convenience menus source products from select third party providers, including existing Merchants on the AppInAll Platform. Prices may vary between the existing Merchant menu and the AppInAll white label convenience menu. For example, the same menu item may be available at both the existing merchant and AppInAll’s white label convenience, but the price on the existing merchant’s menu may be higher than the price on AppInAll’s white label convenience menu.
For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower than the total amount due. Regardless of the cause, AppInAll reserves the right to charge the final price after checkout, including without limitation all applicable transaction taxes. AppInAll may also, in its sole discretion, make Perks or other promotional offers with different features and different rates available to any or all of our users. Unless made available to you, these Perks and promotional offers will have no bearing on your obligation to pay the amounts charged. For more information on these offers, please see the “Perks” section below.
The provider of Services is set forth herein. If you are a California resident, in accordance with Cal. Civ. 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
OUR MATERIALS AND LICENSE TO YOU
With the exception of Your Content (defined below), the Platform and everything on it, including, without limitation, text, photos, videos, graphics and software, (collectively, the “Materials”) is owned by or licensed to AppInAll. The Platform and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Platform and except for the intellectual property of other companies that are displayed on the Platform, all intellectual property, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to AppInAll, including, without limitation, APPINALL; DevourNow; DrinkNow and AppInAll.com trade dress. Accordingly, you are not authorized to download, remove, transmit, alter, reproduce, modify, distribute, exploit, sell, lease, obscure, decompile, reverse engineer, or disassemble, any content or any trademark or copyright notice from the Platform, including, without limitation, the Materials. If you do any of the aforementioned, AppInAll will not be responsible in any way for any damage to your computer system or loss of data that results from such download. Please also be advised that AppInAll enforces its intellectual property rights to the fullest extent of the law.
Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Platform for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as
defined below) contained on the Platform. Any other use of the Platform is strictly prohibited. Nothing contained on the Platform and/or Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third-party proprietary content on the Platform without the express written permission of AppInAll or the relevant third-party owner, as applicable. Any rights not expressly granted herein are reserved by AppInAll and AppInAll’s licensors.
YOUR CONTENT AND CONDUCT
I. Your Conduct
By accessing the Platform or the Services, you agree:
• to comply with the Agreement and all applicable laws, rules and regulations in connection with your use of the Platform and Services, including, without limitation, laws regarding online conduct and Your Content (as defined below);
• not to use the Platform or Services for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
• not to access the Platform or Services using a third party’s account/registration without the express consent of the Account holder and not to attempt to impersonate another user or person;
• not to avoid, bypass, remove, deactivate, impair, descramble, or attempt, through any means, to circumvent any technological measure implemented by AppInAll to protect the Platform, or otherwise attempt to gain unauthorized access to any part of the Platform and/or any Service, other Account, computer system, and/or network connected to any AppInAll server;
• not to use the Platform or Services in any manner that could damage, disable, overburden, and/or impair the Platform, any AppInAll server, or the network(s) connected to any AppInAll server, and/or interfere with any other party’s use and enjoyment of the Platform;
• not to advertise to, or solicit, any user, Merchant, or other business to buy or sell any products or services, or use any information obtained from the Platform or the Services in order to contact, solicit, or advertise or sell to any user, Merchant, or other business, in each case, unless specifically authorized in writing by AppInAll;
• not to deep-link to or frame the Platform and/or access the Platform manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the Platform and/or any Materials and/or other content on the Platform, unless specifically authorized in writing by AppInAll;
• not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the Platform;
• not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the Platform or Materials;
• not to create Merchant reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Platform;
• not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
• not to harass, annoy, intimidate, threaten or engage in any racist, sexist, or other behavior that AppInAll finds objectionable to any AppInAll employees, contractors, or agents engaged in providing any portion of the Services and not to engage in any other behavior that AppInAll deems inappropriate when using the Platform or Services;
• not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (e.g., by email or instant message), sending of viruses or other harmful files, harassment, stalking, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any of the Materials or from any portion of the Platform or the Services;
• not to rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the Platform and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Platform and its Services; and
• not to disrupt, interfere with, or otherwise harm or violate the security of the Platform, or any Services, system resources, accounts, passwords, servers, or networks connected to or accessible through the Platform or affiliated or linked sites (including, without limitation, those of our Merchant).
You agree to comply with the above conduct requirements and agree not assist or permit any person in engaging in any conduct that does not comply with the above conduct. In the event that AppInAll believes that you have breached any of the above conduct requirements, AppInAll reserves the right to suspend and/or permanently terminate your Account at our sole discretion. Further, you agree that the consequences of commercial use or re-publication of Your Content (defined below) or Materials from the Platform or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that AppInAll will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.
II. Conduct within Interactive Areas
By transmitting Your Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Platform. We expect your cooperation in upholding our standards. You are responsible for all of Your Content. You agree that Your Content will not:
• be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another’s privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable;
• have a commercial, political, or religious purpose;
• be false, misleading, and/or not written in good faith;
• infringe any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
• be illegal and/or promote illegal activity;
• contain confidential information belonging to a third party;
• contain unauthorized advertising and/or solicits users to a business other than those on the Platform; and/or
• be intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the Platform or other websites.
We do our best to encourage civility and discourage disruptive communication on the Platform. We also do our best to discourage communications that incite others to violate our standards. AppInAll may monitor any and all use of the Platform, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the Platform in a manner intended to protect our property and rights and to facilitate the proper functioning of the Platform. If any of Your Content or conduct on our Platform violates our standards, or any other terms of this Agreement; or interferes with other peoples’ enjoyment of the Materials or our Platform or Services; or is inappropriate in our judgment; we reserve the right, in our sole discretion and without notice to you, (i) to change, delete or remove, in part or in full, any of Your Content, (ii) to terminate or suspend access to any Interactive Areas or any other part of our Platform, and/or (iii) to terminate or suspend your Account; in each case, with or without notice. AppInAll will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with Your Content.
III. Ratings and Reviews
The Platform and other Interactive Areas may allow you to rate (each, a “Rating”) and post reviews (each, a “Review”) of Merchants. Such Ratings and Reviews are considered Your Content and are governed by the terms and conditions of this Agreement. Ratings and Reviews are not endorsed by AppInAll, and do not represent the views of AppInAll or of any affiliate or partner of AppInAll. AppInAll does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other aspects of Your Content. Therefore, all Ratings and Reviews must comply with the following criteria, in addition to and without limiting other requirements applicable to Your Content as set forth in these Terms: (1) before posting a Rating or Review, you must have had recent first-hand experience with the Merchant; (2) you may not have a proprietary or other affiliation with either the Merchant or any of its competitors; (3) you may not draw any legal conclusions regarding the Merchants’ products, services, or conduct; (4) your Review must otherwise comply with the terms of this Agreement as well as all applicable laws, rules, and regulations, including without limitation the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (which may be found at http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf), including that your Review must disclose any “material connection” you may have with AppInAll or the Merchant; and (5) you will not submit a Rating or Review in exchange for payment, free food or beverage items, or other benefits from any Merchant or third party. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the Platform may be removed or excluded by us without notice.
COMMUNICATIONS & TEXT MESSAGES
When you use the Services, or send emails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us or on our behalf electronically, such as e-mails, texts, mobile push notices, or notices and messages through the Services, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
Your voluntary provision to AppInAll of your cell phone number represents your consent that AppInAll may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications for transactional, operational, or informational purposes. When you provide your phone number to AppInAll, you warrant that you are the current subscriber or authorized user of the relevant account. You understand and agree that such messages may be sent using automated technology. You may unsubscribe from receiving text messages from AppInAll at any time. To revoke your consent to receiving SMS or MMS messages from AppInAll, you agree to follow the unsubscribe procedures described below.
You may also receive text messages in response to certain Customer Care requests. To unsubscribe from Customer Care messages, just reply to the message by texting “STOP” to the number sending the message.
If you unsubscribe from receiving text messages from AppInAll through the process described above, you may continue to receive text messages for a short period while AppInAll processes your request(s). If you change or deactivate the phone number you provided to AppInAll, you have an affirmative obligation to immediately update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your Account may receive AppInAll’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.
Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g., T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages.
DISCLAIMER
THE PLATFORM, THE SERVICES, THE MATERIALS, AND ALL OTHER CONTENT ON THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, APPINALL DISCLAIMS, WITH RESPECT TO THE SERVICES, THE PLATFORM, THE MATERIALS AND ALL OTHER CONTENT ON THE PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. APPINALL DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. APPINALL DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE PLATFORM, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT APPINALL) ASSUME THE ENTIRE COST OF USING THE SITE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
APPINALL SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND APPINALL’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. APPINALL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
APPINALL RELIES UPON MERCHANTS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. APPINALL DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL APPINALL BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF APPINALL HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER ACTION OF ANY TYPE THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE PLATFORM OR THE SERVICES PROVIDED ON OR THROUGH THE PLATFORM OR BY APPINALL.
APPINALL ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE PLATFORM. APPINALL ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD-PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN NO EVENT SHALL APPINALL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, NEGLIGENCE, TORT OR ANY OTHER ACTION OF ANY TYPE EXCEED IN THE AGGREGATE (A) THE AMOUNT PAID BY YOU TO APPINALL OR A MERCHANT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.
YOU AND APPINALL AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND APPINALL AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGE ARISING OUT OF YOUR USE OF THE SITE IS TO DISCONTINUE USING THE PLATFORM AND SERVICES, WHICH YOU MAY DO AT ANY TIME.
IMPORTANT NOTE TO NEW JERSEY CONSUMERS
IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THIS AGREEMENT DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE) TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE, AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING, WITHOUT LIMITATION, THE NEW JERSEY PRODUCTS LIABILITY ACT); AND (D) THE NEW YORK GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW).
THIRD PARTY LINKS
The Platform may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions (“Third Party Websites”). If you click on a link to a Third Party Website, AppInAll will not warn you that you have left the Services or Platform or that you are subject to the terms and conditions of another website or third
party service provider. AppInAll does not review, monitor, operate and/or control the Third Party Websites and AppInAll makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content, products or services available on or through and/or the functioning of the Third Party Websites. By providing access to Third Party Websites, AppInAll is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third Party Websites, including, without limitation, providing information, materials and/or other content to the Third Party Websites, is entirely at your own risk. AppInAll reserves the right to discontinue links to any Third Party Websites at any time and for any reason, without notice.
ADDITIONAL TERMS
Your use of the Platform is subject to any and all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Platform that we may post or link to on the Platform (collectively, the “Additional Terms”), such as end-user license agreements, or other agreements or rules applicable to particular features, promotions, or content on the Platform, including, without limitation, the Google Maps/Google Earth Additional Terms of Service located at https://maps.google.com/help/terms_maps.html and the Google Privacy Policy located at https://www.google.com/intl/ALL/policies/privacy/index.html. All such Additional Terms are hereby incorporated into this Agreement by reference.
TERMINATION AND VIOLATIONS OF THE AGREEMENT
Your rights under this Agreement will terminate automatically without notice if you fail to comply with any term of this Agreement. Further, AppInAll reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Platform and/or Services offered on or through the Platform (or any part thereof), including but not limited to the Platform’s features, look and feel, and functional elements and related Services. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the Platform and Services provided herein.
Upon termination of this Agreement for any reason or no reason: (1) your access rights will terminate and you must immediately cease all use of the Platform and Services; and (2) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” (vii) “Indemnification” and (viii) “Waiver and Severability.”
AppInAll reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the Platform and/or Services from a particular Account, device and/or IP address.
You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
INDEMNIFICATION
You agree to indemnify and hold harmless AppInAll and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”) from and against any losses, liabilities, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of or in connection with: (i) AppInAll’s use of your User Content; (ii) your unauthorized use of the Services, (iii) your breach of this Agreement; (iv) your actual or alleged violation of any law, rule or regulation; (v) any third party’s access or use of the Services using your AppInAll Account; or (vi) any dispute or issue between you and any third party, including without limitation any Delivery Partner or Merchant.
WAIVER AND SEVERABILITY
Any waiver by AppInAll of any term of this Agreement must be in writing. Except as otherwise provided in this Agreement (see “Dispute Resolution” section III), if any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, modified or replaced by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.
ENTIRE AGREEMENT
This Agreement, together with any amendments and any additional agreements you may enter into with AppInAll in connection with the Platform and the Services hereunder, shall constitute the entire agreement between you and AppInAll concerning the Platform, any orders placed through the Platform, and the Services hereunder.
CONTACT
If you have any questions regarding this Agreement or the Platform, please contact your account manager or email help@appinall.com.
I have read and fully understand the contents of this document. I agree to the terms and conditions stated above.
