Description of Services
If YOU place a food or beverage order on OUR website, WE will request a DRIVER to pick up and deliver the order to the location YOU specify. In this Agreement, “DRIVER” means a driver WE have engaged as an independent contractor to facilitate delivery of food and beverages to customers.
OUR services do not include preparing or inspecting any food or beverages YOU order, whether for contamination, cleanliness, proper preparation, edibility, or safety of consumption.
Disclaimer of Warranties
WE PROVIDE OUR SERVICES AND THIS WEBSITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HAVE MADE NO, AND EXPRESSLY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERAL NATURE OF THE FOREGOING DISCLAIMER, WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS REGARDING: (1) THE CORRECTNESS, ACCURACY, OR RELIABILITY OF OUR SERVICES OR THIS WEBSITE; (2) THE TIME OF DELIVERY OF ANY FOOD OR BEVERAGES ORDERED ON THIS WEBSITE; (3) WHETHER ANY FOOD OR BEVERAGES ORDERED ON THIS WEBSITE ARE AVAILABLE OR WILL ACTUALLY BE DELIVERED; OR (4) THE QUALITY, SAFENESS, OR EDIBILITY OF ANY FOOD OR BEVERAGES ANY DRIVER DELIVERS TO YOU.
FOOD AND BEVERAGE DESCRIPTIONS ON THIS WEBSITE HAVE EITHER BEEN PROVIDED BY THE RESTAURANTS OR COLLECTED FROM PUBLICLY-AVAILABLE SOURCES. WE MAKE NO WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH REGARD TO ANY PRODUCT PROVIDED OR OFFERED BY ANY RESTAURANT, AND YOU ACKNOWLEDGE THAT ANY RELIANCE ON REPRESENTATIONS AND WARRANTIES PROVIDED BY ANY RESTAURANT WILL BE AT YOUR OWN RISK.
Limitation of Liability
YOU acknowledge and agree that neither WE nor any of the DRIVERS prepare any food or beverages, and that WE merely facilitate delivery by DRIVERS of food and beverages prepared by restaurants and others who are not affiliated with US. YOU also acknowledge and agree that the DRIVERS are independent contractors and not OUR employees, and that we do not control the manner in which they deliver food and beverage orders.
To the fullest extent permitted by law: (1) neither WE nor any DRIVER will be liable for, and YOU fully waive and release, any and all claims against US or any DRIVER for damages related to any food or beverages ordered on this website or delivered (or not delivered) by a DRIVER (including but not limited to bodily injury or death); and (2) WE will not be liable for, and YOU fully waive and release, any and all claims against US for any actions of any DRIVER. These waivers and releases of claims include (but are not limited to) waiving and releasing all claims for special, indirect, consequential, or incidental damages, damages for lost profits, loss of revenue, or loss of use, whether such damages arise in contract, negligence, tort, under statute, in equity, at law, or otherwise, even if WE have been advised of the possibility of such damages.
To the fullest extent permitted by law, YOU assume any and all risk of loss and bodily injury (including death) from any cause whatsoever related to OUR services and this website, including but not limited to food poisoning, food allergies, food-borne illness, bacteria, parasites, or toxins, and any and all illness, sickness, or disease caused by the food or beverages ordered on this website or delivered (or not delivered) by a DRIVER.
WE are not obligated to provide a refund for any order placed on OUR website unless it is never delivered due to OUR sole fault. As examples, refunds will not be issued for: (1) dissatisfaction with food; (2) food temperature; (3) delays in delivery (whether as a result of traffic conditions or otherwise); or (4) errors in orders. Any delivery times listed on OUR website are rough estimates only, and may be inaccurate.
Sometimes WE may offer a refund, but our doing so will not obligate US to do so again the future.
YOU agree to indemnify, defend, and hold harmless US and our directors, officers, shareholders, owners, managers, members, partners, agents, employees, attorneys, consultants, advisors, lenders, representatives, and affiliates from and against any and all demands, causes of action, claims, losses, liabilities, expenses (including attorneys’ fees and costs) and damages to persons or property based on, arising out of, caused by, connected to, or related to YOUR negligence, willful misconduct, or breach of this Agreement.
Attorneys’ Fees and Costs
If either YOU or WE institute an arbitration, lawsuit, action, or other proceeding (as applicable, “PROCEEDING”) of any nature in connection with any controversy arising out of this Agreement, or to interpret or enforce any rights under this Agreement, the prevailing party may recover all expenses the prevailing party incurs in with respect to or relating to the PROCEEDING, including but not limited to attorneys’ fees, costs, and expenses of such PROCEEDING. Any judgment or order entered in such PROCEEDING will contain a specific provision providing for the recovery of attorneys’ fees and costs incurred in enforcing such judgment and an award of prejudgment interest from the date of the breach at the maximum rate of interest allowed by law. The prevailing party will be determined by the court, arbiter, or other decision maker based on an assessment of which party’s major arguments made or positions taken in the proceedings could fairly be said to have prevailed over the other party’s major arguments or positions on major disputed issues.
Modifications and Interruption to Service
WE may modify or discontinue this website or our services without notice to YOU. WE will not be liable to YOU or any third party if WE exercise OUR right to modify or discontinue this website or our services. YOU acknowledge and agree that WE do not guarantee continuous, uninterrupted, or secure access to OUR website, and that the operation of OUR website may be adversely affected by numerous factors or circumstances outside of OUR control, none of which WE will be liable for.
OUR website may include links to other websites on the internet that are owned and operated by restaurants or other third parties. YOU acknowledge that WE are not responsible for the availability of, or the content located on or through, any third-party site. YOU should contact the site administrator or webmaster for those third-party sites if YOU have any concerns regarding the content located on such sites.
This Agreement will be governed by the laws of the State of Hawaii without regard to the choice of law or principles of conflict of law. YOU and WE will bring all actions in law, equity, or otherwise arising under this Agreement, or related to the transactions contemplated in this Agreement, exclusively in the federal or state courts of Hawaii, and in no other jurisdiction or venue. YOU and WE each consent to the jurisdiction of such courts. YOU and WE waive all rights to a jury trial in any dispute pertaining to this Agreement.
Compliance with Law
YOU assume all knowledge of applicable law and are responsible for compliance with any such laws. YOU may not use this website or OUR services in any way that violates applicable state, federal, or international laws, regulations, or other government requirements. YOU further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.
YOU and WE agree to enter into this Agreement by electronic means as provided in Hawaii Revised Statutes Chapter 489E (Uniform Electronic Transactions Act).
Ownership of Site Content
All content included or available on this website, including site design, text, graphics, interfaces, and the selection and arrangements thereof is OUR property and/or third parties and protected by intellectual property rights. Any use of material on this website, including reproduction, modification, distribution, replication, any form of data extraction or data mining, or other commercial exploitation of any kind without OUR prior written permission is strictly prohibited.
If any provision of this Agreement is unlawful, void, or unenforceable for any reason, the other provisions (and any partially-enforceable provision) will not be affected thereby and will remain valid and enforceable to the maximum possible extent. This Agreement is the final, entire agreement among YOU and US pertaining to the subject matter of this Agreement.