Effective Date: March 19, 2021
The Platform is a virtual marketplace that connects diners with third-party service providers, including restaurants and independent delivery service providers. You may order food through the Platform to be delivered from particular restaurants, including their authorized licensees and franchisees, or other purveyors of food in cities where we provide such Services ("Restaurants").
BAM is not a restaurant or food preparation business, and Restaurants on the Platform operate independently of us. Restaurants are required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale and marketing of food, including, without limitation, food preparation and safety and menu disclosures. We are not liable or responsible for Restaurants' food preparation or safety, and we do not verify Restaurants' compliance with laws. Furthermore, we do not guarantee the quality of what Restaurants sell, nor do we guarantee the services provided by Restaurants, including, without limitation, in those cases where they provide the delivery services or engage another third-party delivery service. We do not independently verify, and are not liable for, representations made by Restaurants regarding their food or any other matter, including, without limitation, any descriptions, disclosures, photographs or images displayed on the Platform showing food offered by Restaurants and/or delivered by Drivers (as defined below).
We are not a delivery company or a common carrier. Some deliveries are provided by our network of independent delivery service providers ("Drivers"). Drivers have entered into agreements with us, which require them to comply with all applicable federal, state, and local laws, rules and regulations. By accessing the Platform, you agree and acknowledge that Drivers are solely responsible for, and we are not liable or responsible for, the delivery services provided to you by any Drivers or any subcontractors of Drivers, or any acts, omissions, errors or misrepresentations made by any Drivers.
USING BLACK AND MOBILE
You may only create and hold one account on the Platforms (each, an "Account") for your personal use. In consideration of the use of the Platform and the Services, you agree that you are able to create a binding legal obligation with us, and you also agree to: (a) provide true, accurate, current and complete information about yourself, and (b) maintain and promptly update the personal information you provide to us to keep it true, accurate, current and complete at all times.
We will charge, and you authorize us to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, we 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.
BAM reserves the right to set, revise and/or remove 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 restaurant food and beverage items. 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, we reserve the right to charge the final price after checkout, including without limitation all applicable transaction taxes. We may also, in our sole discretion, make promotional offers with different features and different rates available to any or all of our users at any time. Unless made available to you, such promotional offers will have no bearing on your obligation to pay the amounts charged.
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.
With the exception of Your Content (as 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 us. 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 in the Materials, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to BAM. Accordingly, you are not authorized to download any content from the Platform, including, without limitation, the Materials, and if you do, we will not be responsible in any way for any damage to your computer, device or systems or loss of data resulting from any such download.
- use the Platform or Services in any manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
- access the Platform or Services using an account that is not your own without the express consent of the Account holder;
- impersonate another user or person;
- avoid, bypass, remove, deactivate, impair, descramble or attempt, through any means, to circumvent any technological measure implemented by us to protect the Platform, or otherwise gain unauthorized access to any part of the Platform or Services, other Account, computer system, and/or network connected to any BAM server;
- use the Platform or Services in any manner that could damage, disable, overburden and/or impair the Platform, any BAM server or the network(s) connected to any BAM server;
- use the Platform or Services in any manner that could interfere with any other party's use and enjoyment of the Platform;
- advertise to or solicit any user, Restaurant, Driver or other party 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, Restaurant, Driver or other party unless specifically authorized in writing by us;
- deep-link to, frame or access the Platform manually or with any robot, spider, web crawler, extraction software, automated process or device or other means to scrape, copy, or monitor any portion of the Platform unless specifically authorized in writing by us;
- create or compile, directly or indirectly, any collection, compilation, database or directory from the Platform or Materials;
- create Restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not comport with the purpose or spirit of the Platform;
- 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 or promotional offers;
- harass, annoy, intimidate or threaten any of our employees, contractors, or agents engaged in providing any portion of the Services or engage in any other behavior that we deem inappropriate when using the Platform or Services;
- engage in any criminal or tortious activity, including, without limitation, fraud, spamming, sending of viruses or other harmful files, 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;
- 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
- 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 any Restaurant).
In the event that we suspect that you engaged in, or attempted to engage in, directly or indirectly, any of the prohibited conduct described above, we reserve the right, but do not have any obligation, to suspend and/or permanently terminate your Account at our sole discretion.
We may provide you with interactive opportunities (a) on the Platform, including, without limitation, features such as user ratings and reviews, saved favorites, liked items and bookmarked Restaurants, user profiles and pictures, (b) on social media pages maintained by us, or (c) through other communications with you, including, without limitation, through text ("SMS") or multimedia ("MMS") messages. You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish and/or otherwise make available to us through the Platform or otherwise in connection with your use of our Services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google or other third party login ("Your Content"). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a BAM user, textual, visual or audio content and information, whether transmitted via the Platform, SMS or MMS message, or otherwise.
You hereby grant us an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute and/or otherwise use Your Content in connection with our or our partners' or affiliates' business and in all forms of media now known or hereafter developed. Such uses include, without limitation, use of your username and/or other user profile information such as your ratings history and how long you have been a BAM user, to attribute Your Content to you on the Platform, including in public areas on our Platform, or otherwise in connection with our Services. All such uses will be made without further notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Furthermore, you hereby grant us a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to incorporate and use any of your suggestions, input or other feedback relating to the Platform or the Services for any purpose without notice to, approval by, or compensation to you.
You understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children or otherwise unsuited to your purpose. We and our affiliates, and each of their respective officers, directors, members, managers, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the "Released Parties") will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for the action of any and all third parties with respect to Your Content, or for any damages you allege to incur as a result of or relating to any third-party content.
By introducing Your Content into the Platform, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Platform from time to time. You are responsible for all of Your Content. You agree that Your Content will not, as determined by us:
- be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, discriminatory, racist or otherwise objectionable;
- have a commercial, political or religious purpose;
- be false or misleading;
- infringe any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary right of any third party;
- be illegal or promote or glamorize illegal activity;
- contain unauthorized advertising or solicit users to a business other than those on the Platform; or
- be intended to interrupt, corrupt, destroy or limit the functionality or integrity of any computer software, hardware on the Platform or other websites.
When you use the Services, or send emails, text messages and other communications from your computer or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as emails, 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.
Your voluntary provision of your telephone number (whether a wireless number or otherwise) to us represents your consent that we 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 telephone number to us, 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 and/or pre-recorded messages. You may unsubscribe from receiving text messages from us at any time. To revoke your consent to receiving SMS or MMS messages from us, you agree to follow the unsubscribe procedures described below.
When placing orders through the Platform, you may receive order status messages from us about each order. To unsubscribe from order-related messages, just reply "STOP" to the number sending the message. To resubscribe, text "START" to the same number from the phone number associated with your account. If you need assistance, text "HELP". Additionally, you may receive messages from us following receipt of a completed order soliciting feedback and/or other information relating to the order. You may unsubscribe from all such feedback messages by replying "STOP" to the number sending the feedback messages. To resubscribe, text "START" to the number sending the feedback messages using the phone number associated with your account. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from us, the Restaurant, or your Driver regarding your order or its delivery unless you also text "STOP" to the number sending the order-related messages, and even in such event, you may still receive individual texts from the Restaurant or your Driver to enable successful delivery of your order. You may also receive text messages in response to your requests; to unsubscribe from such messages, just reply to the message by texting "STOP" to the number sending the message.
If you unsubscribe from receiving text messages from us through the process described above, you may continue to receive text messages for a short period while we process your request(s). If you change or deactivate the telephone number you provided to us, you have an affirmative obligation to immediately update your account information and the telephone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any telephone number(s) previously attributed to you, and any new telephone number(s) you attach to your account may receive our standard SMS or MMS messages unless you also unsubscribe via the above procedures.
Standard data and message rates may apply for SMS and MMS messages, whether you send or receive such messages. Please contact your mobile phone carrier for details.
ADDITIONAL TERMS FOR MOBILE APPLICATIONS
We may make available software to access the Platform via a mobile device (a "Mobile Application").
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 BY BAM IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BAM 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. BAM DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES, THE MATERIALS OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS OR OTHER CONTENT ON THE PLATFORM WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. BAM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS 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 OR TIMING OF A DELIVERY ORDERED ON THE PLATFORM OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT BAM) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION RELATING TO YOUR USE OF THE PLATFORM, THE SERVICES, THE MATERIALS OR OTHER CONTENT ON THE PLATFORM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.
BAM WILL NOT BE LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BAM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING, DIRECTLY OR INDIRECTLY, FROM SUCH CAUSES.
BAM RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. BAM DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE PLATFORM OR 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 RATINGS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE PLATFORM OR THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BAM BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE), EVEN IF BAM 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 BAM.
BAM 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 MATERIALS FROM THE PLATFORM. BAM ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES OR MATERIALS AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD-PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THE PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER OR INACCURACY CONTAINED THEREIN, OR HARM TO ANY PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN NO EVENT SHALL BAM'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 THE LESSER OF (A) THE AMOUNT PAID BY YOU TO BAM OR A RESTAURANT, IF ANY, AND (B) $500. 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 APPLICABLE LAW.
THIRD PARTY SITES
The Platform may contain links to certain websites and applications that are owned, controlled, developed, sponsored or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Sites"). BAM does not review, monitor, operate or control Third Party Sites and BAM makes no guarantees, representations or warranties as to, and shall have no liability for, the content available on or through or the functioning of any Third Party Sites. By providing access to Third Party Sites, BAM is not recommending or otherwise endorsing the products or services provided by the sponsors or owners of those Third Party Sites. Your access to and use of Third Party Sites, including, without limitation, providing information, materials or other content to Third Party Sites, is entirely voluntary and at your own risk. BAM reserves the right to discontinue links to any Third Party Site at any time and for any reason, without notice.
RESTAURANT LOYALTY PROGRAMS
If you do register with a Restaurant's promotional or loyalty program, you understand that you may be required to agree to additional terms and conditions provided by the Restaurant. You also understand that you will need to contact the Restaurant separately if you have any questions regarding your participation in their promotional or loyalty program. BAM does not own, operate or otherwise control such separate Restaurant promotional or loyalty programs and therefore shall have no liability for those separate programs.
We respect the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent (as set forth below) with a written notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 ("DMCA"):
- The physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
- Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material (e.g., the specific URL);
- Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
- A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.
Please send this notification to our copyright agent at: Black and Mobile, LLC, Attention: Copyright Agent, 3675 Market Street, Suite 200, Philadelphia, PA 19104. Please note that the information provided in such a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to the Platform, the Services and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
PLEASE READ THIS "DISPUTE RESOLUTION" SECTION CAREFULLY. IT LIMITS THE WAYS YOU CAN SEEK RELIEF FROM BAM AND REQUIRES YOU TO ARBITRATE DISPUTES ON AN INDIVIDUAL BASIS.
WAIVER OF CLASS OR CONSOLIDATED ACTIONS
WAIVER OF CLASS OR CONSOLIDATED ACTIONS
WAIVER AND SEVERABILITY
The Platform is operated by Black and Mobile, LLC, 3675 Market Street, Suite 200, Philadelphia, PA 19104.