Acceptance of Terms and Conditions
Foodsmart is a business name of Zipongo, Inc., and any references herein to Foodsmart also refer to Zipongo. Zipongo, Inc. and its service Foodsmart are herein referred to as “Foodsmart,” “we,” or “us”. By using the Foodsmart website at www.Foodsmart.com ("Site") and/or the Foodsmart services made available for use with your mobile device, including mobile apps, including but not limited to OrderWell, or through the Site ("Service"), you ("you" or the "End User") agree to these terms and conditions (the "Terms of Service" or "Agreement") that we have provided herein.
I. TERMS OF SERVICE
FOODSMART PROVIDES ALL INFORMATION ON THE SERVICE AND SITE, INCLUDING NUTRITION INFORMATION, FITNESS INFORMATION, AND INFORMATION RELATING TO MEDICAL AND HEALTH CONDITIONS, FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND NOT AS MEDICAL ADVICE. FOODSMART DOES NOT ASSUME ANY LIABILITY FOR INACCURACIES, OMISSIONS OR MISSTATEMENTS RELATING TO SUCH INFORMATION. INFORMATION ON THE SERVICE AND SITE IS NOT INTENDED AS A SUBSTITUTE FOR THE ADVICE PROVIDED BY A HEALTHCARE PROFESSIONAL. YOU SHOULD NOT USE SUCH INFORMATION AS MEDICAL ADVICE OR FOR THE DIAGNOSIS OR TREATMENT OF A HEALTH PROBLEM, DISEASE, OR OTHER MEDICAL CONDITION. ALWAYS CONSULT A HEALTHCARE PROFESSIONAL BEFORE MAKING ANY CHANGES TO YOUR DIET OR EXERCISE REGIMEN. FOODSMART DOES NOT PROVIDE DELIVERY SERVICES OR FOOD PREPARATION. EACH FOOD SERVICE PROVIDER OFFERS DELIVERY SERVICES THROUGH USE OF THE SERVICE. FOODSMART OFFERS INFORMATION AND A METHOD TO ON-DEMAND MEAL DELIVERY, BUT DOES NOT, AND DOES NOT INTEND TO, PROVIDE COURIER SERVICES OR DELIVERY SERVICES, OR ACT IN ANY WAY AS A COURIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY COURIER. Unless expressly stated otherwise on OrderWell or Foodsmart, the food featured on the Service is offered, provided, sold, and delivered by the Food Service Provider, not Foodsmart. We are in no way responsible for the quality of food or services offered by any Food Service Provider. FOODSMART DOES NOT AND DOES NOT INTEND TO PREPARE FOOD, OR ACT AS A FOOD PREPARATION ENTITY AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY PREPARED FOOD. YOU AGREE THAT WHEN A FOODSMART AGENT PERFORMS ON YOUR BEHALF, YOU ARE RESPONSIBLE FOR ANY PURCHASES, FEES, SHIPPING AND HANDLING COSTS THAT MAY APPLY FOR ANY AUTHORIZED PURCHASES COMPLETED BY THE FOODSMART AGENT. YOU AGREE THAT FOODSMART IS NOT RESPONSIBLE FOR KNOWING OR NOTIFYING ANYONE OF ANY FOOD ALLERGIES OR FOOD SENSITIVITIES THAT YOU MAY HAVE. THERE IS NO COST OF SERVICE TO YOU FOR USING A FOODSMART AGENT TO COMPLETE PURCHASES ON YOUR BEHALF.
2. USER ACCOUNTS
To use the Service, you must create a user account ("Account"). You may link this Account to your account with a third party service ("Third Party Account"), such as Google or an employer provided SSO connection, in which case we will import your profile information from your Third Party Account to help create your Account and to enable you, if available, to login to the Service using your Third Party Account login credentials. We may require you to enter additional information to complete the creation of your Account. Your Third Party Account is provided by the applicable third party service, not us, and subject to that third party service’s separate terms and conditions. You will promptly update all Account information to keep it true, accurate, and complete. You will be responsible for all activities that occur under your Account, username, and password and therefore you agree to keep your password confidential. You agree that when you elect to use a Foodsmart agent to act on your behalf, that each affirmative request by you is an authorization to use your Account, including any Account preparation or follow-up that is required to complete the requested task. You agree to notify us immediately of any unauthorized use of your username or password or if you believe that your password is no longer confidential. We reserve the right to require you to alter your username and/or password if we believe that your Account is no longer secure. You will not: (a) provide any false personal information as part of your Account information or in connection with the Service or Site; (b) create an Account for anyone other than yourself; (c) create or use more than one Account at any given time; (d) transfer your Account to anyone else; (e) permit others to use your Account; (f) use or access other persons’ Accounts; or (g) create an Account for any individual who is under the age of 13. You agree that all details you provide to us for the purpose of ordering or purchasing products or services on your behalf are correct, that the Payment Details you are using is your own, and that there are sufficient funds to cover the cost of the product or the service. You further agree that by creating an Account, you authorized Foodsmart to market directly to you regarding Foodsmart Services, and other third party products and services.
3. USER CONTENT
You hereby grant Foodsmart an irrevocable, non-exclusive, royalty-free and fully paid, worldwide, transferable license, with the right to sublicense through multiple tiers, to reproduce, distribute, modify, publicly display, publicly perform, prepare derivative works of, transmit, and otherwise use (a) your Public Content in any manner and for any purpose and (b) your User Content for the purposes of providing you and other users the Service. "User Content" means any and all submissions, assessments, contest entries, other entries and other content and information that a user submits to, posts on, or makes available to the Service, but excluding Public Content. "Public Content" means any and all messages, comments, recipe and meal ratings, and other content and information that a user submits to, posts on, or makes available to the Public Areas. User Content and Public Content sometimes are referred to herein together as "Content". You represent and warrant that: (a) you have the right to grant the foregoing license and to post and submit the User Content and Public Content; and (b) the User Content and Public Content will not infringe, misappropriate, or violate any third party rights (including any intellectual property rights). You are solely responsible for your User Content and Public Content.
3.2 USER GUIDELINES
You represent, warrant, and agree that:
- you will comply with all applicable laws, including privacy laws and intellectual property laws;
- you will not post inappropriate, inaccurate, untruthful, or objectionable content to the Service or Site;
- you will not bully, harass, or advocate harassment of another user or person;
- you will not solicit passwords or Personal Data of any kind for commercial or unlawful purposes from other users, or engage in commercial activities and/or sales such as contests, sweepstakes, barter, advertising, and pyramid schemes;
- you will not post content that contains "junk mail" or "chain letters";
- you will not post content that is obscene or that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- you will not post or upload any virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, or harming the operation of, or providing unauthorized access, to the Service or Site;
- you will not use the Service or Site to do or promote anything that is unlawful, illegal, misleading, defamatory, or libelous;
- you will not promote, or upload or post anything that contains, an illegal and/or unauthorized copy of another person’s copyrighted work (whether marked as such or not).
If you violate the guidelines listed above, any other user guidelines posted on the Service or Site, the terms of this Agreement, or if Foodsmart believes that any of your conduct or content is offensive or illegal, violates the rights of, harms, or threatens the safety of third parties, or may create liability for Foodsmart or third parties, Foodsmart reserves the right (but is not obligated) to investigate and take appropriate legal action in its sole discretion, including removing such content from the Service, notifying the appropriate authorities regarding the source of such content, barring you from accessing the Service, and terminating your Account.
3.3 PUBLIC CONTENT ADVISORY AND DISCLAIMER
You acknowledge that all Public Content publicly posted and all User Content privately transmitted to you, is the sole responsibility of the person who originated such content. We may, but are not required to monitor or control the content posted via the Service, and we do not take responsibility for such content. Any use or reliance on any Public Content or User Content or materials posted via the Site or obtained by you through the Service is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Service. You understand that by using the Site and the Service, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will we be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Site or the Service.
3.4 OTHER USAGE RESTRICTIONS
You may not do any of the following while accessing or using the Site or the Service: (i) access, tamper with, or use non-public areas of the Service, Foodsmart's computer systems, or the technical delivery systems of Foodsmart's providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Foodsmart (and only pursuant to those terms and conditions); (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Service to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of content in a manner that interferes with or creates an undue burden on the Service.
4. PROPRIETARY RIGHTS
4.1 USE OF THE SERVICE
Foodsmart and its licensors own the Service, the Site, all content (except for your Personal Data) contained in the foregoing, and all intellectual property rights relating to the foregoing. Any unauthorized reproduction, modification, distribution, transmission, display, scrape, or performance of any portion of the Service, the Site, or any other content (except for your Personal Data) contained in the foregoing is strictly prohibited. Foodsmart and its licensors reserve all rights not expressly granted under this Agreement. There are no implied licenses in this Agreement.
Foodsmart will treat any suggestions, comments, or feedback relating to Foodsmart’s business, services, and products ("Feedback") that you provide as non-confidential and nonproprietary. You hereby grant Foodsmart the irrevocable, worldwide, fully transferable and sublicensable right to use and exploit any Feedback that you provide in any manner and for any purpose without any obligation to compensate you.
5. THIRD PARTY WEBSITES AND SERVICES
6. FOODSMART AGENT SERVICES
7. AVAILABILITY AND MODIFICATION OF SERVICE
Foodsmart reserves the right, from time to time, to suspend, modify, or discontinue the Service or the Site, in whole or in part, with or without notice. You agree that Foodsmart will not be liable to you or to any third party for any modification, discontinuance, or suspension of the Service or the Site, in whole or in part.
You may terminate your Account at any time and for any reason through the appropriate account management page on the Service, if available, or by sending an e-mail to support@Foodsmart.com. In Foodsmart’s sole discretion, Foodsmart has the right to terminate your Account, immediately effective upon sending notice to you at the email address you provide in your Account. Upon termination of your Account by either party, your right to access and use your Account and the Service will terminate immediately. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of your Account, your access to and use of the Service, or this Agreement. Even after this Agreement is terminated for any reason, the following provisions of this Agreement will remain in effect: Sections 1, 4.2 and 7 through 18.
9. WARRANTY DISCLAIMER
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, FOODSMART PROVIDES THE SERVICE AND THE SITE AND ANYSERVICES PROVIDED BY A THIRD PARTY SUPPLIER "AS-IS" AND "AS AVAILABLE" AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. FOODSMART MAKES NO WARRANTY THAT THE SERVICE OR THE SITE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. FOODSMART DOES NOT ASSUME ANY OBLIGATION TO MONITOR ACTIVITIES CONDUCTED ON THE SERVICE OR THE SITE. FOODSMART DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICE OR THE SITE.
10. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, FOODSMART AND ITS AUTHORIZED AGENTS WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, OR INDIRECT (INCLUDING WITHOUT LIMITATION COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE, THE SITE, OR THIS AGREEMENT, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICE; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, EVEN IF FOODSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, FOODSMART’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICE, THE SITE AND THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL FOODSMART’S SUPPLIERS HAVE ANY LIABILITY UNDER OR RESULTING FROM THIS AGREEMENT.
11. USER INDEMNIFICATION
You agree to indemnify and hold Zipongo, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney’s fees, arising out of or relating to your: (a) User Content or Public Content; (b) use of the Service or Site, including OrderWell; (c) breach of this Agreement; (d) breach or inaccuracy of any representation or warranty made under this Agreement; or (e) violation of applicable laws or any of the rights of third parties.
12. USER DISPUTES AND RELEASE
You are solely responsible for your interactions with other users. Foodsmart reserves the right, but has no obligation, to monitor, or take any action Foodsmart deems appropriate regarding, disputes between you and other users. To the extent permitted under applicable laws, you hereby release Foodsmart from any and all claims or liability related to: (a) any content posted on the Service or Site by you or other users; or (b) the conduct, whether online or offline, of any other user. You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
13. COPYRIGHT POLICY
You may not post, distribute, or reproduce in any way any Foodsmart copyrighted material, trademarks, or other proprietary information unless you have the right to do so. It is Foodsmart’s policy to, in its sole discretion, terminate the Account of any user who repeatedly infringes copyright rights of Foodsmart or third parties. If you believe that your work has been copied and posted on the Service or Site in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 512. At a minimum, you must provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) an identification of the location on the Site or Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. We provide a template email for your convenience at www.Foodsmart.com/dmca. We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Foodsmart also will terminate a user's account if the user is determined to be a repeat infringer. Foodsmart’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following: Zipongo, Inc., dba Foodsmart, Attn: Copyright Agent, 595 California Street, FL 4, San Francisco, CA 94133.
Foodsmart is located at 595 California Street, Fl 4, San Francisco, CA 94133. If you are a California resident, 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.
15. ZIPONGO COMMUNICATIONS
The communications between you and Zipongo use electronic and telephonic means, whether you use the Service or Site, send us emails, or call Foodsmart’s customer support team, or whether Zipongo posts notices on the Service or Site or communicates with you via email, SMS, push notifications on your device, phone call, or mail. For contractual purposes, you (a) consent to receive communications from Zipongo in these forms; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zipongo provides to you satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
16. GOVERNING LAW; ARBITRATION
This Agreement, and any claim, dispute or controversy relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in San Francisco, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and you waive any jurisdictional, venue, or inconvenient forum objections, except that: (i) a party bringing an action may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through JAMS; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; and (ii) Foodsmart may seek injunctive relief in any court having jurisdiction to protect its rights and interests, including but not limited to, with regard to its intellectual property or confidential or proprietary information.
19. TRADEMARK AND COPYRIGHT NOTICE
"Zipongo", "Zipongo, Eating Well Made Simple", “Foodsmart”, "OrderWell" and other names, slogans, graphics, logos, and trade names used on the Service and Site are the trademarks of Foodsmart and may not be used without Foodsmart’s permission. Third-party trademarks, registered trademarks, service marks, trade names, product names, and company names or logos that may appear on the Service or Site are the property of their respective owners, including Apple, Inc. Apple, the Apple logo and iPhone are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Android and the Android logo are registered trademarks of Google, Inc.
20. SWEEPSTAKE TAX
For any Sweepstake that you may enter while using the Foodsmart Services, YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE DOLLARS, INCENTIVES OR REWARDS RECEIVED THROUGH THE SERVICES MAY BE SUBJECT TO TAX, WHICH IS THE SOLE RESPONSIBILITY OF YOU, THE END USER RECIPIENT. Foodsmart may provide you and/or the appropriate government agency or taxing authority with information related to any payments or incentives you earn in connection with your use of the Services. You agree to provide Foodsmart with all required information to assist Foodsmart in complying with its reporting or withholding obligations. Foodsmart may withhold any tax from any incentive or reward as required by applicable law. All such sweepstakes are subject to the applicable Sweepstake Official Rules.
Revised October 2017, 2018, 2021, 2022. Copyright © 2023, Zipongo, Inc., dba Foodsmart