End User License Agreement & Terms of Service
Last updated: June 3, 2017.
By accessing or using this website you are agreeing to the END USER LICENSE AGREEMENT & TERMS OF SERVICE (“TOS”, “EULA”, or “Agreement”) set forth herein. This website; all of its constituent pages as added and amended from time to time; all content on said website and any constituent page; all URL’s associated with or which lead to said website; all associated applications on any platform (including without limitation Android and IOS); all trade dress and monikers on said website; all intellectual property contained anywhere on said website (including without limitation all trademarks, service marks, copyrights, and patents); the source and any other code; all design elements and renditions; copies of any of the foregoing; and to the extent not heretofore listed all of content set forth on each and every page of the website, including without limitation all copy, marks, monikers, logos, trade dress, processes, information, and intellectual property; are, collectively and individually, the sole and exclusive property of Orchard System, Inc. (“Service Provider”).
You, the user, and any of your agents, representatives, assignees, employees, partners, designees, or persons to whom you have given access to the Site and the Services (whether intentionally, knowingly, negligently, or otherwise) may referred to as “you” or “Licensee”.
THIS IS A BINDING, LEGAL CONTRACT BETWEEN YOU AND SERVICE PROVIDER. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES (AS DEFINED BELOW). YOUR USE OF THE SERVICES PROVIDED BY OR THROUGH THIS WEBSITE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. IF YOU OBJECT TO ANY PART OR PORTION HEREOF DO NOT USE THE SERVICES.
The Services. Service Provider offers an online reference platform to help consumers find and order from restaurants and food services providers (“the Service”).
The Site. The Site includes orderorchard.com, goorchard.com, shoporchard.com, orchard.college, orchard.menu, orchard.earth, all of its constituent pages, all content on said websites and any constituent page, all URL’s associated with or which lead to said websites, all associated applications on any platform (including without limitation Android and IOS), all trade dress and monikers on said websites, all of Service Provider’s intellectual property contained anywhere on said websites (including without limitation all trademarks, service marks, copyrights, and patents), the source and any other code, design elements, renditions, and copies of any of the foregoing. The Site further includes any and all amendments, modifications, and changes of any nature whatsoever to the foregoing.
Personal Use Only. User may use the Site and the Services exclusively for personal, non-commercial purposes.
Versions; Cost. Restaurant subscribers are charged 10% of the order subtotal (exclusive of tax and tip) plus $.30 per order. Any writing executed by the parties indicating different terms shall supersede this Agreement. In the future Service Provider may add or remove additional services levels at specified prices.
Orders & Payment. Payment for the Services or for any goods or products ordered through the Services or on the Site is due at the time of payment by a customer of User for any order. Payment must be made through the payment portal accessible on the Site. Service Provider is not obligated to accept any other form of payment. If payment is accepted by cash, check, or money, acceptance shall be subject to any additional conditions imposed by Service Provider in its sole discretion. Service Provider may, in its sole discretion, refuse to contract with any user (either a customer or a restaurant). Orders are subject to availability of the product(s) and/or service(s) as well as price confirmation. Customers are advised that restaurant prices are subject to change at any time. User and/or restaurant are responsible for delivery of any order. Service Provider is not responsible for shipment delay or failure caused by a third party delivery service or force majeure. Placement of an order constitutes the acknowledgement and representation of the user that (i) it is over the age of eighteen (18) and otherwise eligible to use the Site and (ii) it is authorized to use the credit card or other method of payment through which payment is remitted. Credit cards may be debited immediately upon provision by user of the required information. A declined or refused credit card shall be deemed a failure of consideration and shall excuse any further action (or omission) by Service Provider. Service Provider is neither the agent nor the principal with respect to any third party with which user may enter into a contract, shall not be bound by any third party contract, and shall have no liability thereunder.
Changes; Refund. Service Provider shall be under no obligation to refund any payment once remitted.
Sales of Alcohol and Related Products.Where permitted under applicable law, Service Provider may offer for sale and sell alcoholic beverages. The following provisions apply specifically to the offer for sale or sale of alcoholic beverages.
a. Alcoholic Beverages. As used herein, “alcohol” or “alcoholic beverage” means any product, consumable, or item the sale of which is regulated under the laws governing the manufacture, sale, possession, and/or consumption of alcoholic beverages in the jurisdiction where User is physically located at the time in which it uses the Site or the Services, and, if different, to which User proposes to receive alcoholic beverages as part of the Services.
b. License Disclosure. Service Provider is a payment processor and delivery service only. It does not possess, has not registered for, and does not intend to register for a license to sell alcoholic beverages in any jurisdiction. Service Provider is not a licensed retailer of alcoholic beverages. Accordingly, Service Provider will not and does not sell alcoholic beverages. Any such beverages must be and are purchased from a licensed retailer as required under applicable law. Service Provider may (i) deliver alcoholic beverages on behalf of a licensed retailer and (ii) provide payment processing services on behalf of such retailer. Funds processed by Service Provider as payment for alcoholic beverages shall be remitted to the seller.
c. No Partnership, Agency, or Joint Venture.Nothing herein shall create or be deemed to create any partnership, agency, joint venture, or other relationship between Service Provider and any licensed retailer. Service Provider is at all times an independent contractor of such retailer.
d. User’s Representations and Warranties.User warrants and represents that it (i) is at least 21 years of age, (ii) is not and will not purchase or offer for consumption any alcoholic beverage for any person not of legal drinking age or not otherwise permitted by law to purchase or consume alcoholic beverages.
e. Alcohol Delivery Policies. Service Provider reserves the right to refuse to fulfill any order including the delivery of alcoholic beverages in its sole and absolute discretion at any time. Alcoholic beverages will only be delivered to User and only upon proof provided by User of its age and identity. If alcoholic beverages are purchased and User fails to produce proof of age and identity at the time of delivery or appears to be intoxicated or under the influence of any controlled substance at the time of delivery, Service Provider may at its option cancel the entire order and Service Provider shall be under no obligation to refund any or all of the purchase price.
f. Indemnification. User agrees to indemnify and hold Service Provider and each of its owners, shareholders, members, managers, partners, directors, officers, employees, representatives, agents, and assigns harmless from any claim, cause of action, injury, damages, or liability, including without limitation any criminal charge or liability, arising in whole or in part due to (i) the consumption of any alcoholic beverage, (ii) the possession or consumption of alcoholic beverages by any person not legally entitled to possess or consume same, (iii) the wrongful transfer or procurement of alcoholic beverages, (iv) the operation of any vehicle or conveyance, including without limitations cars and boats of any kind, while under the influence of alcoholic beverages, (v) and any personal injury or damage to property caused in whole or in part by the consumption of alcohol.
g. Compliance with Laws. User agrees to comply with, and is solely responsible for complying with, all applicable laws concerning the purchase, possession, and consumption of alcoholic in any jurisdiction as well as the transportation of alcohol between jurisdictions.
h. Prosecution for Violation of Laws. YOU AGREE AND ACKNOWLEDGE THAT YOU ARE OVER THE AGE OF 21 YEARS AND OTHERWISE LEGALLY ENTITLED TO PURCHASE, POSSESS, AND CONSUME ALCOHOLIC BEVERAGES IN THE JURISDICTION IN WHICH YOU ARE RECEIVING ANY ALCOHOLIC BEVERAGE AS PART OF ANY DELIVER. SERVICE PROVIDER RESERVED THE RIGHT TO PROSECUTE, TO THE FULLEST EXTENT UNDER APPLICABLE LAW, ANY ATTEMPT BY ANY USER TO MISREPRESENT ITS AGE OR PROCURE OR PROVIDE ALCOHOL, ON SUCH USER’S BEHALF OR ON BEHALF OF ANY THIRD PARTY.
i. Modification and Cancelation. Service Provider may modify and/or cancel the delivery of and processing of payments for alcoholic beverages at any time in its sole and absolute discretion.
Subscription. You shall provide true, accurate, current, and complete information as prompted by the Site and shall update such information from time to time as is necessary. The provision of false, inaccurate, or incomplete information or failure to maintain current information shall be grounds for the immediate termination of this Agreement. You agree only you will use any account created with your subscription and that you will not share any access information, including without limitation your login or password, with any third party. You are solely responsible for maintaining the security of your login and password and agree to indemnify Service Provider for any loss, damage, claim, liability, or cause of action occasioned by the use of such login and password by any third parties. In the event that you believe your account information has been compromised you are required to notify us immediately.
Third Party Accounts. The Services may, but will not necessarily, be accessed via one or more third party accounts. You agree to abide by the terms and conditions that govern such third party account and to hold Service Provider harmless from any cause of action, liability, loss, injury, or damage caused by the use of such third party provider or a violation of the terms of service of such third party provider.
Promotions. Service Provider may but shall under no circumstances be required to make gift or promotional offers of the Service. Any gift or promotional offers shall be pursuant to such additional terms and conditions as Service Provider shall announce in writing on the Site. Service Provider may terminate any gift or promotional offer at any time in its sole and absolute discretion. In the event of a conflict between the terms and conditions associated with a gift or promotional offer and this Agreement, the provisions of this Agreement shall control.
Use of The Services.
a. Equipment. You are solely responsible for providing the equipment necessary to access and use the Site and the Services, including without limitation any computer, drive, software, hardware, application, modem, and internet connection. Service Provider shall not be responsible for any fees paid or accrued by you to access the internet. You agree to hold Service Provider harmless from any damage to such equipment regardless of the cause of such damage.
b. Content. All information, data, text, software, graphics, voice or sound files, photographs, videos, depictions, messages, emails, chats, text messages, documents, and other such materials (“Content”) of Licensee or any third party used on or transmitted by or through (i) the Site or (ii) the use of the Services shall be the sole and exclusive property of Licensee or such third party as appropriate. Service Provider does not warrant or guaranty the accuracy, integrity, quality, veracity, or appropriateness for any purpose of such Content, and shall be held harmless and indemnified by Licensee for any damages caused by or arising out of the use, reliance on, or application of the Content, including without limitation damages caused by errors, omissions, inaccuracies, negligence, misrepresentations, or fraud. User represents and warrants that it has all right and title to use the brands, marks, trademarks, service marks, copyrights, depictions, recipes, and other materials posted on the Site. Each restaurant user shall indemnify Service Provider and hold it harmless from any claim of intellectual property infringement with respect to same.
c. Prohibited Content. You shall not post on the Site, on your own behalf or on behalf of any third party, and shall not permit others to post on the Site, any Content that, in whole or in part: (a) Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, or hate speech; (b) misrepresents the actual identity of a person, or that misrepresents or falsely represents an affiliation with a person or entity; (c) constitutes advertising, promotional material, junk mail, spam, a chain letter, pyramid scheme, or an unauthorized solicitation; (d) is infected by or contains viruses, malware, spyware, worms, or any other code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer, software, hardware, program, or telecommunications equipment; (e) is likely to interfere with or disrupt the Site or the Services, or any server or network connected thereto, or contravenes any requirements, policies, procedures, or requirements of networks connected to the Site or the Service; (f) violates any federal, state, or local law, statute, regulation, rule, code, or ordinance, or otherwise applicable laws regarding transmission of technical data; or (g) imposes an unreasonable or disproportionate workload on Service Provider, the Site, or the Services. Service Provider shall not prescreen any Content but reserves the right to remove without notice any Content that Service Provider deems, in its sole discretion, to constitute Prohibited Content.
d. Content Modification. You acknowledge and specifically authorize Service Provider to change, alter, or modify the Content as necessary in order to transmit it over one or more networks and to conform and adapt it, the Site, or the Services to any technical requirements of connecting networks, devices, hardware, software, and the like.
e. Disclosure of Content. Service Provider may preserve and disclose Content (i) when it is or reasonably determines that it is obligated to preserve and/or disclose Content pursuant to any applicable international law, treaty, federal, state, or local law, statute, code, rule, regulation, or ordinance; (ii) to comply with any legal process; (iii) to enforce the terms of this Agreement; (iv) to respond to complaints or claims that the Content violates any third party rights; (v) to protect any right or property of Service Provider; and (vi) to protect the personal safety or property of any user of the Site or the Services.
f. Storage. Service Provider does not warrant or guarantee continued access to any Content transmitted to or stored on the Site or used in any manner on the Site or as part of the provision of the Services, and this Agreement further expressly excludes any warranty that such Content will not be lost, damaged, or destroyed. Service Provider shall not maintain a copy, in whole or in part, of any Content, and further shall be held harmless in the event of a failure to properly store any Content. Service Provider assumes no responsibility for, and shall be held harmless in the event of, any injury or damage to you arising out of the deletion of, failure communications, addresses, or personalization settings.
Modification. Service Provider may (i) establish general practices and use limits concerning the Site and the Services, (ii) limit the size of communications that may be transmitted through the Site and the Services, (iii) limit the amount of Content that may be stored or processed by you on or through the Site, (iv) limit your access to the Site as may be necessary and reasonable under the circumstances, (v) change or modify its general practices in its sole discretion and with or without notice to you, (vi) change or modify the Site, the TOS, or the Services in its sole discretion and with or without notice to you, (vii) quarantine prohibited Content; (viii) modify domain and user settings in its sole discretion and with or without notice to you (including without limitation modifications designed to eliminate spam or bulk mail); and (ix) modify, suspend, or discontinue the Site or the Services as necessary for routine maintenance, extraordinary repairs, or due to an attack by hackers or other third party.
Termination. In the event of your breach of any term of this Agreement, Service Provider, in its sole discretion, may suspend or terminate your account (including without limitation deactivation of your password) and remove and discard the Content, and delete any records concerning or associated with your use of the Site or the Services. You agree that you are not entitled to any refund in the event of termination, and that you will indemnify Service Provider and hold it harmless from any costs of any nature whatsoever caused by or attributable in whole or in part to such termination.
Service Provider’s Proprietary Property. The Site, the Services, and any software, hardware, platform, server, code, or other materials used in connection with the Site and the Services (collectively “the Proprietary Materials”) all of which are owned by Service Provider and/or its affiliates contain proprietary and confidential information not available to the public and protected by intellectual property and trade secret laws, including without limitation the Uniform Trade Secrets Act as well as trademark and copyright protections. Subject to your continued compliance with the terms of this Agreement, including without limitation payment of all sums due hereunder, Service Provider hereby grants to you a non-exclusive, non-transferable license to use the Site and the Services on a computer. You shall not, by or through any representative, agent, employee, director, officer, shareholder, partner, member, or third party, reverse engineer, reverse assemble, attempt or purport to discover any source code; sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Proprietary Materials; copy, modify, rent, lease, loan, sell, distribute, or create derivative works of (or based on) the Proprietary Materials, in whole or in part; or use modified versions of the Proprietary Materials, including without limitation obtaining unauthorized access to the Site or the Services. You may access the Site only through the interfaces provided by or through Service Provider.
Remedies. The parties acknowledge that any breach of (i) Service Provider’s rights in and to its Proprietary Property or (ii) the Confidentiality provisions of this Agreement are such that legal remedies alone would be insufficient to protect Service Provider’s rights and interests. The parties further agree that in the event of a breach or potential breach of either the Service Provider’s Proprietary Property or the Confidentiality sections of this Agreement, or both, Service Provider may petition any court of competent jurisdiction for a restraining order, injunction, or such other equitable remedy as it may deem appropriate, and Licensee expressly waives any defense to the inapplicability or inappropriateness of such equitable remedies.
Third Party Service Providers. Certain third parties may offer products and services through the Site. Each such third party is solely responsible for the products or services it offers. Service Provider makes no warranty, guaranty, or representation concerning the availability, quality, fitness, safety, or suitability of or with respect to any such product or service or of the person or entity that offers, provides, or sells such product or service and expressly disclaims any such warranties, express or implied, including without limitation any implied warranties of fitness for a particular purpose or merchantability. You agree to indemnify Service Provider and hold it harmless from any loss, liability, damage, injury, or cause of action caused by or attributable to, in whole or in part, any negligent, grossly negligent, reckless, intentional, or willful act or omission of such third party product or service provider. Service Provider does not warrant that the information, assistance, advice, or consultation provided by any Solver is accurate, beneficial, or will produce a desired result. Furthermore, Service Provider does not warrant or represent that any Solver is qualified to provide and specific information or advice. All such information, assistance, advice, and consultation is provided “AS IS” and subject to the warranty disclaimers set forth below. Users agree to indemnify Service Provider and hold it harmless from any claim, cause of action, injury, loss, or damage caused by or alleged to be caused by the information, recommendations, counsel, or advice provided by any Solver.
Disclaimer of Warranties. USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK. THE SITE AND THE SERVICES ARE PROVIDED AS IS AND AS AVAILABLE. SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ANY GOODS OR TANGIBLE MATERIALS PROCURED OR OBTAINED THROUGH THE WEBSITE, REGARDLESS OF ORIGIN, MANUFACTURER, OR PRODUCER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SERVICE PROVIDER MAKES NO WARRANTY THAT (i) ANY INFORMATION OR ADVICE OBTAINED FROM THE USE OF THE SITE OR THE SERVICES WILL BE ACCURATE OR RELIABLE, (ii) THE QUALITY OF ANY SERVICES OR INFORMATION OBTAINED AS A RESULT OF THE USE OF THE SITE OR THE SERVICES WILL MEET LICENSEE’S EXPECTATIONS, AND (iii) ANY ERRORS THAT IMPAIR THE FUNCTIONALITY OF THE SITE OR THE SERVICES WILL BE REPAIRED. LICENSEE ASSUMES ALL RISK OF LOSS FROM DAMAGE TO ITS COMPUTERS, SOFTWARE, HARDWARE, DRIVES, CODE, DATA, INFORMATION, CONTENT, INTELLECTUAL PROPERTY, AND OTHER PROPERTY OF ANY NATURE WHATSOEVER CAUSED IN ANY MANNER OR BY ANY METHOD FROM MATERIAL TRANSMITTED, RECEIVED, DOWNLOADED OR OTHERWISE OBTAINED OR SENT USING THE SITE. YOU ASSUMES ALL RISK OF LOSS CAUSED BY VIRUSES, MALWARE, WORMS, OR OTHER PROGRAMS OR MATERIALS TRANSMITTED BY OR THROUGH THE SITE.
Privacy. You acknowledge that Service Provider may collect personally identifiable, confidential, proprietary, trade secret, intellectual property, business, financial, and similar information of Licensee (“Licensee Proprietary Information”). Except as set forth elsewhere in this Agreement, Service Provider shall not knowingly sell, rent, lease, transfer, or disclose any Licensee Proprietary Information unless (i) you consent to such sale, lease, transfer, or disclosure; (ii) sale, lease, transfer, or disclosure by Service Provider is necessary to the provision of the Services; or (iii) as necessary due to your breach of this Agreement. Service Provider may change the provisions of this section as it deems necessary in its sole discretion and shall provide notice of same as mandated by this Agreement.
Limitation of Liability. In no event shall Service Provider be liable to you for any incidental, indirect, special, consequential, or punitive damages, regardless of the nature of the claim or liabilities to third parties arising from any source, even if a party to this Agreement has been advised of the possibility of damages.
Indemnification. In addition to any other indemnification obligations as set forth in this Agreement, you (“the Indemnifying Party”) shall indemnify and hold harmless Service Provider, its officers, directors, employees, shareholders, agents, partners, members, successors, and assigns (each “an Indemnified Person”) from and against any and all demands, claims, causes of action, losses, damages, liabilities, costs, and expenses (including, without limitation, attorneys’ fees) asserted by any third party against an Indemnified Person, resulting from any breach of the Indemnifying Party’s representations and warranties, any breach or non-fulfillment in the performance of the Indemnifying Party’s covenants and agreements, or negligence by the Indemnifying Party or an agent or independent contractor of the Indemnifying Party in connection with the performance of the Indemnifying Party’s covenants and agreements hereunder. Such indemnification obligation shall include without limitation claims and liabilities arising out of the transmission, use, or posting of Content; use of the Site or the Services; connection to and transmission of Content to or from the Site; your violations of this Agreement; and your violations of any third party’s rights, including without limitation any third party’s intellectual property rights.
Jury Trial Waiver. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, THE PARTIES HEREBY VOLUNTARILY AND KNOWINGLY WAIVE THE RIGHT TO A TRIAL BY JURY ON ANY ISSUE AND IN ANY CAUSE OF ACTION.
Class Action Waiver. In the event of a dispute between the parties, resolution of same, whether by arbitration, litigation, or otherwise, shall proceed solely on an individual basis. You hereby waive any right to assert any claim or cause of action on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. Claims may not be joined or consolidated unless agreed to in writing by all parties. No award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party.
Compliance with COPPA. The Site and Services are not intended for access or use by children under the age of 13 years.
Miscellaneous Provisions. Failure of a party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of a party at any time to avail itself of such remedies as it may have for any breach or breaches of such provision. The provisions of this Agreement are severable. Should any part or portion hereof be deemed void or unenforceable by a court of competent jurisdiction, the remaining parts and portion shall remain in full force and effect. This Agreement represents the entire understanding by and between the parties and supersedes any other representations, promises, or statements not wholly consistent herewith. This Agreement may only be modified by a writing signed by both parties. The parties acknowledge the receipt and sufficiency of the consideration set forth in this Agreement. This Agreement shall be construed pursuant to the laws of North Carolina without regard to its conflict of law provisions. Any lawsuit brought to interpret or enforce the terms of this Agreement shall be filed in the appropriate state or federal court with jurisdiction and venue over Raleigh, North Carolina. The parties hereby waive any defense of improper venue, lack of personal jurisdiction, or forum non conveniens. You warrant that you read the foregoing Agreement, understand and acknowledge each of its provisions, have the authority to execute this Agreement on your own behalf as well as on behalf of any entity or third party signatory, and agree on your behalf and on behalf of any entity or third party signatory to be bound by the terms and conditions herein. Service Provider shall be entitled to recoup from you its costs, including without limitation its reasonable attorneys’ fees, in bringing or defending any lawsuit or other proceedings that concern in whole or in part the enforcement and/or interpretation of this Agreement. Service Provider shall not be liable in the event that the performance of any obligation of Service Provider hereunder is rendered impossible by any circumstance beyond its control and not created by its own act or omission, including flood, fire, and other natural disasters, war, riot or social unrest, work stoppage, act of terrorism, and Acts of God. Service Provider shall resume performance pursuant to the provisions of this Agreement upon the abatement of the force majeure. Any notice required to be given to Licensee may be made, in Service Provider’s sole discretion, by posting same conspicuously on the Site or by email to any email address provided by you. Notice to Service Provider shall be by U.S. Mail 5322 Highgate Dr., STE 242-B, Durham, NC 27713.