Tasty Spot Terms of Service
Last Updated: February 22, 2017
These terms of service constitute a legally binding agreement (the “Agreement”) between you and Catapult Inc. (“Catapult,” “we,” “us” or “our”) governing your use of the Tasty Spot application, website, and technology platform (collectively, the “Tasty Spot Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND CATAPULT HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST CATAPULT TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A FOOD SERVICE VENDOR, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE TASTY SPOT PLATFORM.
1. The Tasty Spot Platform
The Tasty Spot Platform provides a marketplace where people who seek to find, buy and pick-up food from street food vendors (“Customers”) can locate a vendor, select the desired items and purchase from the vendor (“Vendors”). Vendors and Customers are collectively referred to herein as “Users,” and each User shall create a User account that enables access to the Tasty Spot Platform. For purposes of this Agreement, the Vendor services provided by Vendors to Customers that are matched through the Platform shall be referred to collectively as the “Services”. Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. Each food item Service provided by a Vendor to a Customer shall constitute a separate agreement between such persons.
2. Modification to the Agreement
In the event Tasty Spot modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Tasty Spot reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Tasty Spot Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that a modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The Tasty Spot Platform may only be used by individuals who can form legally binding contracts under applicable law. The Tasty Spot Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
As a Customer, you agree to pay the amounts charged for your use of the Tasty Spot Platform and Services (“Charges”). Charges include service charges and applicable taxes as set forth on your market’s Tasty Spot Cities page (Tasty Spot.com/cities), plus any tips to the Vendor that you elect to pay. Tasty Spot has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms to your market’s Tasty Spot Cities page. Pricing may vary based on the election to “buy” additional enhancements which may be released by Tasty Spot from time to time. These additional options will be described on your market’s Tasty Spot Cities page as applicable. You are responsible for reviewing the applicable Tasty Spot Cities page and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.
There are two types of fees, Service Fee and Transaction Fee.
Service Fees and Policy.
- Service Fee. Tasty Spot may assess a per-transaction “Service Fee” to support the Tasty Spot Platform and related services provided to you by Tasty Spot. The amount of the Service Fee may vary but shall be retained by Tasty Spot in its entirety.
- Cancellation Fee. After requesting a Vendor order you may cancel it through the app, but note that in certain cases a cancellation fee may apply. You may be changed in full if the order has been accepted by the Vendor and/or the food has already been prepared and is ready for pickup.
- Tips. When you place your order, you may elect to tip your Vendor in cash or through the Tasty Spot application. Any tips will be provided entirely to the applicable Vendor business.
Transaction Fees, Credits & Promotional Discounts.
- Facilitation of Charges. All Charges are facilitated through a third-party payment processing service (e.g., Stripe, Inc., or Braintree, a division of PayPal, Inc.). Tasty Spot may replace its third-party payment processing services without notice to you. Charges shall only be made through the Tasty Spot Platform. With the exception of tips, cash payments for food items purchased through the Tasty Spot Platform are strictly prohibited.
- No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Tasty Spot Platform, any disruption to the Tasty Spot Platform or Services, or any other reason whatsoever.
- Credits and Order Discounts. You may receive credits ("Tasty Spot Credits") or order discounts ("Order Discounts") that you can apply toward payment of certain Charges upon completion of a purchase from time to time. Tasty Spot Credits and Order Discounts are only valid for use on the Tasty Spot Platform, and are not transferable or redeemable for cash except as required by law. Tasty Spot Credits and Order Discounts cannot be combined, and if the cost of your order exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the order. Order Discounts only apply to the food order, not the Service Fee or other charges. Additional restrictions on Tasty Spot Credits and Order Discounts may apply as communicated to you in a relevant promotion or by clicking on the relevant Tasty Spot Credit or Order Discount offer within the Payments section of the Tasty Spot App.
- Credit Card Authorization. Upon addition of a new payment method or each food order request, Tasty Spot may seek authorization of your selected payment method to verify the payment method, ensure the food order cost will be covered, and protect against unauthorized behavior or your failure to pick up the order. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or check card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.
If you are a Vendor, you will receive payment for your Services. All payments are subject to a Tasty Spot Service Fee, discussed below. You will also receive any tips provided by Customers to you, and tips will not be subject to any Tasty Spot Service Fee. Tasty Spot will process all payments due to you through its third party payments processor. You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law.
- Service Fee. In exchange for permitting you to offer your Services or Food Items through the Tasty Spot Platform and marketplace as a Vendor provider, you agree to pay Tasty Spot (and permit Tasty Spot to retain) a fee based on each transaction in which you provide Services (the “Service Fee”). The amount of the applicable Service Fee will be communicated to you in the Tasty Spot.com/cities page. Tasty Spot reserves the right to change the Service Fee at any time in Tasty Spot’s discretion based upon local market factors, and Tasty Spot will provide you with notice in the event of such change. Continued use of the Tasty Spot Platform after any such change in the Service Fee calculation shall constitute your consent to such change.
- Pricing. You set the prices for your Service or Food Items (inclusive of the Tasty Spot Service Fee). You have the right to change the cost of the menu items for your Service or Food Items at any time and at your sole discretion based upon local market factors. Tasty Spot is not responsible for how the market may react to your pricing changes in any way.
- Cost Adjustments. Tasty Spot reserves the right to adjust or withhold all or a portion of the amount of the transaction if it believes that (i) you have attempted to defraud or abuse Tasty Spot or Tasty Spot’s payment systems, (ii) in order to resolve a Customer complaint (e.g., you did not deliver the items or failed to prepare a safe and compliant product in a particular instance of Services in the Tasty Spot application when the transaction was over). Tasty Spot’s decision to adjust or withhold the transaction amount owed in any way shall be exercised in a reasonable manner.
6. Tasty Spot Communications
By becoming a User, you agree to receive communications from us, including via e-mail, text message, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Tasty Spot, its affiliated companies and/or Vendors, may include but are not limited to: operational communications concerning your User account or use of the Tasty Spot Platform or Services, updates concerning new and existing features on the Tasty Spot Platform, communications concerning promotions run by us or our third- party partners, and news concerning Tasty Spot and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
7. Your Information
You may be able to create or log-in to your Tasty Spot User account through online accounts you may have with third party social networking sites (each such account, an "SNS Account"). By connecting to Tasty Spot through an SNS Account, you understand that Tasty Spot may access, store, and make available any SNS Account content according to the permission settings of your SNS Account (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that SNS Content may be available on and through the Tasty Spot Platform to other Users. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
8. Promotions and Referral Programs
Tasty Spot, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Tasty Spot. Tasty Spot reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Tasty Spot determines or believes that the redemption of 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.
As part of your User account, Tasty Spot may provide you with or allow you to create a “Tasty Spot Code”, “Customer Code” or “Referral Code” a unique alphanumeric code for you to distribute to friends, family and other persons (each a “Referred User”) to become new Tasty Spot Customers (“Referred Customers”) or Vendors (“Referred Vendors”). Tasty Spot Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Tasty Spot Code. You are prohibited from advertising Tasty Spot Codes, including but not limited to: Google, Facebook, Twitter, Bing and Craigslist. Tasty Spot reserves the right to deactivate or invalidate any Tasty Spot Code at any time in Tasty Spot’s discretion.
From time to time, Tasty Spot may offer you with incentives to refer new Users to the Tasty Spot community (the “Referral Program”). These incentives may come in the form of Tasty Spot Credits, and Tasty Spot may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Tasty Spot Codes and participation in the Referral Program is subject to this Agreement and the additional Referral Program rules.
9. Restricted Activities
With respect to your use of the Tasty Spot Platform and your participation in the Services, you agree that you will not:
- impersonate any person or entity;
- stalk, threaten, or otherwise harass any person, or carry any weapons outside of your legal rights;
- violate any law, statute, rule, permit, ordinance or regulation;
- interfere with or disrupt the Services or the Tasty Spot Platform or the servers or networks connected to the Tasty Spot Platform;
- post Information or interact on the Tasty Spot Platform or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
- use the Tasty Spot Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Tasty Spot Platform;
- “frame” or “mirror” any part of the Tasty Spot Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose; or
- modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Tasty Spot Platform or any software used on or for the Tasty Spot Platform;
- rent, lease, lend, sell, redistribute, license or sublicense the Tasty Spot Platform or access to any portion of the Tasty Spot Platform;
- use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Tasty Spot Platform or its contents;
- link directly or indirectly to any other web sites;
- transfer or sell your User account, password and/or identification to any other party
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
- cause any third party to engage in the restricted activities above.
10. Vendor Representations, Warranties and Agreements
By providing Services as a Vendor on the Tasty Spot Platform, you represent, warrant, and agree that:
- You possess a valid business license and are authorized to operate your food service business and have all appropriate licenses, approvals and authority to provide food services to Customers in all jurisdictions in which you provide Services.
- You own, or have the legal right to operate, the premises you use when providing Services, and such premises are in good operating condition and meet the industry safety standards and all applicable statutory and state department requirements for a business of its kind.
- You will only provide Services using the premises that you are licensed to operate, and approved by Tasty Spot, and for which a photograph has been provided to Tasty Spot.
- You will not make any misrepresentation regarding Tasty Spot, the Tasty Spot Platform, the Services or your status as a Vendor business.
- You will not attempt to defraud Tasty Spot or Customers on the Tasty Spot Platform or in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable transaction costs or other payments for the order(s) in question at our discretion.
- You agree that we may obtain information about you, including your business and criminal records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
- You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the business and the premises you use to provide Services.
- You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
11. Intellectual Property
All intellectual property rights in the Tasty Spot Platform shall be owned by Catapult Inc. as a product of Tasty Spot absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Tasty Spot Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Tasty Spot. Tasty Spot shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
TASTY SPOT and other Tasty Spot logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Tasty Spot in the United States and/or other countries (collectively, the “Tasty Spot Marks”). If you provide Services as a Vendor, Tasty Spot grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Tasty Spot Marks solely in connection with providing the Services through the Tasty Spot Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Tasty Spot’s prior written permission, which it may withhold in its sole discretion. The Tasty Spot Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Tasty Spot is the owner and licensor of the Tasty Spot Marks, including all goodwill associated therewith, and that your use of the Tasty Spot Marks will confer no additional interest in or ownership of the Tasty Spot Marks in you but rather inures to the benefit of Tasty Spot. You agree to use the Tasty Spot Marks strictly in accordance with Tasty Spot’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Tasty Spot determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that incorporate the Tasty Spot Marks or any derivatives of the Tasty Spot Marks other than as expressly approved by Tasty Spot in writing; (2) use the Tasty Spot Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Tasty Spot Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Tasty Spot’s rights as owner of the Tasty Spot Marks or the legality and/or enforceability of the Tasty Spot Marks, including, without limitation, challenging or opposing Tasty Spot’s ownership in the Tasty Spot Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Tasty Spot Marks, any derivative of the Tasty Spot Marks, any combination of the Tasty Spot Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Tasty Spot Marks; (5) use the Tasty Spot Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Tasty Spot’s sole discretion. If you create any materials bearing the Tasty Spot Marks (in violation of this Agreement or otherwise), you agree that upon their creation Tasty Spot exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the Tasty Spot Marks or derivative works based on the Tasty Spot Marks. You further agree to assign any interest or right you may have in such materials to Tasty Spot, and to provide information and execute any documents as reasonably requested by Tasty Spot to enable Tasty Spot to formalize such assignment.
Tasty Spot respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Tasty Spot Platform or Services infringe upon your copyrights, please visit Copyright Policy page for information on how to make a copyright complaint.
The following disclaimers are made on behalf of Tasty Spot, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
Tasty Spot does not provide Vendor Services, and Tasty Spot is not a food provider. It is up to the Vendor to decide whether or not to offer a product or service to a Customer contacted through the Tasty Spot Platform, and it is up to the Customer to decide whether or not to accept a food product from any Vendor contacted through the Tasty Spot Platform. We cannot ensure that a Vendor or Customer will complete an arranged order for service. We have no control over the quality or safety of the end product that is delivered as a result of the Services.
The Tasty Spot Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific quality from use of the Tasty Spot Platform and/or the Services, including the ability to provide or receive Services at any given location or time. We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Tasty Spot Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Tasty Spot Platform will be corrected, or that the Tasty Spot Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Tasty Spot Platform or Services.
We cannot guarantee that each Vendor is who he or she claims to be. Please use common sense when using the Tasty Spot Platform and Services, including looking at the photos of the Vendors to make sure it is the same Vendor that you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the Tasty Spot Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Vendor provider or Customer prior to engaging in an arranged service.
Tasty Spot is not responsible for the conduct, whether online or offline, of any User of the Tasty Spot Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, lack of service by Vendors. By using the Tasty Spot Platform and participating in the Services, you agree to accept such risks and agree that Tasty Spot is not responsible for the acts or omissions of Users on the Tasty Spot Platform or participating in the Services.
Tasty Spot expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Tasty Spot Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Tasty Spot Platform or through the Services. Please carefully select the type of information that you post on the Tasty Spot Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Tasty Spot or made available through the Tasty Spot Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Tasty Spot Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Tasty Spot Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Tasty Spot Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Tasty Spot, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Tasty Spot Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Tasty Spot Platform may be accessible to Tasty Spot and certain Users of the Tasty Spot Platform.
Tasty Spot advises you to use the Tasty Spot Platform with a data plan with unlimited or very high data usage limits, and Tasty Spot shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Tasty Spot Platform.
This paragraph applies to any version of the Tasty Spot Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Tasty Spot. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Tasty Spot Platform. Tasty Spot, not Apple, is solely responsible for the Tasty Spot Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
13. State and Local Disclosures
Certain jurisdictions require additional disclosures to you. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.
You will defend, indemnify, and hold Tasty Spot including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Tasty Spot Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, without limitation, Vendors, Customers, other parties, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Tasty Spot Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of the premises of your place of business, including your provision of Services as a Vendor; and/or (5) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
15. Limitation of Liability
IN NO EVENT WILL CATAPULT OR THE TASTY SPOT PLATFORM, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “TASTY SPOT” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE TASTY SPOT PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE TASTY SPOT PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TASTY SPOT PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE VENDOR PRODUCTS, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT TASTY SPOT HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY VENDOR FOOD PRODUCTS, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THERE TERMS. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
16. Term and Termination
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Tasty Spot; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (h) of this Agreement. In addition, Tasty Spot may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services or to operate the approved Vendor business under applicable law, rule, permit, ordinance or regulation; (2) you fall below Tasty Spot’s star rating or cancellation threshold; (3) Tasty Spot has the good faith belief that such action is necessary to protect the safety of the Tasty Spot community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Tasty Spot’s reasonable satisfaction prior to Tasty Spot permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Tasty Spot’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
17. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
(a) Agreement to Binding Arbitration Between You and Tasty Spot.
YOU AND TASTY SPOT MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Tasty Spot ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and Tasty Spot, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND TASTY SPOT. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Tasty Spot Platform, the Services, any other goods or services made available through the Tasty Spot Platform, your relationship with Tasty Spot, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Tasty Spot, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Tasty Spot and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND TASTY SPOT ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND TASTY SPOT (AND/OR CATAPULT) MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND TASTY SPOT BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST TASTY SPOT, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, the class, collective, and/or representative action on such Claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rulesthat are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Tasty Spot will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Customers or Vendors, but is bound by rulings in prior arbitrations involving the same Customer or Vendors to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(d) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
- If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (j) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Tasty Spot agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Tasty Spot, Tasty Spot will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
- If Tasty Spot initiates arbitration under this Arbitration Agreement, Tasty Spot will pay all AAA filing and arbitration fees.
- With respect to any Claims brought by Tasty Spot against a Vendor, or for Claims brought by a Vendor against Tasty Spot that: (A) are based on an alleged employment relationship between Tasty Spot and a Vendor; (B) arise out of, or relate to, Tasty Spot’s actual deactivation of a Vendor’s User account or a threat by Tasty Spot to deactivate a Vendor’s User account; (C) arise out of, or relate to, Tasty Spot’s actual termination of a Vendor’s Agreement with Tasty Spot under the termination provisions of this Agreement, or a threat by Tasty Spot to terminate a Vendor’s Agreement; or (D) arise out of, or relate to, Fees (as defined in this Agreement, including Tasty Spot’s service fee on the Services Provided), or tips owed by Tasty Spot to a Vendor for Services, other than disputes relating to referral bonuses, other Tasty Spot promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “Vendor Claims”), Tasty Spot shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Tasty Spot pursuant to the fee provisions above). However, if you are the party initiating the Vendor Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Customers, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator.
- Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
- At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
- Although under some laws Tasty Spot may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, Tasty Spot agrees that it will not seek such an award.
- If the arbitrator issues you an award that is greater than the value of Tasty Spot’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (j) below, then Tasty Spot will pay you the amount of the award or U.S. $1,000, whichever is greater.
(e) Location and Manner of Arbitration.
Unless you and Tasty Spot agree otherwise, any arbitration hearings between Tasty Spot and a Customer will take place in the county of your billing address, and any arbitration hearings between Tasty Spot and a Vendor will take place in the county in which the Vendor provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Tasty Spot agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(f) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration, however you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Opting Out of Arbitration for Vendor Claims That Are Not In a Pending Settlement Action.
As a Vendor business, you may opt out of the requirement to arbitrate Vendor Claims defined in Section 17(e)(3) (except as limited by Section 17(i) above) pursuant to the terms of this subsection. If you do not wish to be subject to this Arbitration Agreement with respect to Vendor Claims, you may opt out of arbitration with respect to such Vendor Claims, other than those in a Pending Settlement Action, by notifying Tasty Spot in writing of your desire to opt out of arbitration for such Vendor Claims, which writing must be dated, signed and delivered by: (1) electronic mail to Legal@tastyspotapp.com or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
3620 Wyoming Blvd NE, Suite 212
Albuquerque, NM 87111
No cases have been filed against Tasty Spot in the past. There may be lawsuits against Tasty Spot alleging class, collective, and/or representative Vendor Claims in the future in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Vendor Claims with Tasty Spot under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Tasty Spot in an individual arbitration provision. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Vendor Claims under this Arbitration Agreement.
(i) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Tasty Spot may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Tasty Spot. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Catapult Inc. and/or Tasty Spot’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by Tasty Spot for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Catapult Inc. and/or Tasty Spot in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Catapult Inc. and/or Tasty Spot with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Catapult Inc. and/or Tasty Spot or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Catapult Inc. and/or Tasty Spot; becomes known to you, without restriction, from a source other than Catapult Inc. and/or Tasty Spot without breach of this Agreement by you and otherwise not in violation of Catapult Inc. and/or Tasty Spot’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Catapult Inc. and/or Tasty Spot to enable Catapult Inc. and/or Tasty Spot to seek a protective order or otherwise prevent or restrict such disclosure.
19. Relationship with Tasty Spot
As a Vendor business on the Tasty Spot Platform, you acknowledge and agree that you and Tasty Spot are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Tasty Spot expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Tasty Spot; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Tasty Spot, and you undertake not to hold yourself out as an employee, agent or authorized representative of Tasty Spot.
Tasty Spot does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your Vendor business. You retain the sole right to determine when, where, and for how long you will utilize the Tasty Spot Platform. You retain the option to accept or to decline or ignore a Customer’s request for Services via the Tasty Spot Platform, or to cancel an accepted request for Services via the Tasty Spot Platform, subject to Tasty Spot’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, Tasty Spot shall have no right to require you to: (a) display Tasty Spot’s names, logos or colors on your business premises(s); or (b) wear a uniform or any other clothing displaying Tasty Spot’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
20. Other Services
In addition to connecting Customers with Street Food Vendors and the full transaction of the subsequent order, the Tasty Spot Platform may enable Users to find Vendors where the Customers can place orders and pay for the food items directly. In these circumstances where the order is not placed through the Tasty Stop Platform, Tasty Spot has no additional part of the transaction between the parties. Accordingly Tasty Spot is not responsible for any portion of the transaction including, but not limited to the actions of the parties, the pricing or accuracy of the payment method and omissions by the food provider.
From time to time, Tasty Spot may add additional upgrades or features which may have an impact on this Agreement. Tasty Spot reserves the right to update or enhance this User Agreement as appropriate.
Except as provided in Section 17, this Agreement shall be governed by the laws of the State of New Mexico without regard to choice of law principles. This choice of law provision is only intended to specify the use of New Mexico law to interpret this Agreement and is not intended to create any other substantive right to non-New Mexicans to assert claims under New Mexico law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound by all other provisions hereof. In that event, the parties shall replace the invalid or non- binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Tasty Spot, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Tasty Spot shall be given by certified mail, postage prepaid and return receipt requested to Catapult, Inc., 3620 Wyoming Blvd. NE, Suite 212, Albuquerque, NM 87111. Any notices to you shall be provided to you through the Tasty Spot Platform or given to you via the email address or physical you provide to Tasty Spot during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Tasty Spot with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Tasty Spot Platform or Services, please contact our Customer Support Team at email@example.com.