Terms of Use

The following Terms of Use (“Terms” or “Terms of Use”) are a legal agreement between you (“you” or “your”) and Virtual Fulfillment Technologies, Inc. ("Vendora," "we," “us” or “our”) and govern your access to and use of any technology or services supplied by Vendora, which include any point-of-sale systems, websites, applications, cloud-based software, cloud-based solutions, hardware, or any other ways Vendora allows you to engage with us directly or through a Merchant that uses Vendora (collectively, part of the “Services”). Our Services include, but are not limited to, our websites, including https://www.vendora.io/ (our “Websites”); the Vendora mobile application and related websites and services (“App”); any digital ordering feature that Vendora offers to Merchants; the use of any gift cards or loyalty points/rewards that you obtain through the Services; and Payment Transactions facilitated on the Vendora point of sale (“Point of Sale”); and other features, including those that allow Merchants to communicate with you. Capitalized terms used but not defined herein shall be as defined in the Cloud Merchant Service Agreement.

By accessing and/or using any of the Services, you agree to these Terms and any other policies or terms referenced within or posted throughout the Services, including but not limited to promotion terms, guidelines, as well as any rules or terms applicable to particular features or promotions, which are hereby expressly incorporated into these Terms by reference. You also acknowledge that you have read and understand our privacy statement (the “Privacy Policy”).

FROM TIME TO TIME WE MAY UPDATE OR MODIFY THESE TERMS OF SERVICE IN OUR DISCRETION, AND WILL POST THE UPDATED TERMS TO https://www.vendora.io/terms-of-use. SUCH UPDATES MAY BE REQUIRED IN ORDER TO REFLECT ENHANCEMENTS TO OUR SERVICES OR OUR WEBSITE. IF OUR CHANGES REDUCE YOUR RIGHTS OR INCREASE YOUR RESPONSIBILITIES, WE WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE YOU WITH NOTICE BY EMAIL OR THROUGH THE APP, IN ACCORDANCE WITH ANY NOTIFICATION PREFERENCES YOU HAVE PROVIDED. THE UPDATED GUEST TERMS OF SERVICE WILL BECOME EFFECTIVE AS OF THE EFFECTIVE DATE INDICATED IN THE GUEST TERMS OF SERVICE (“EFFECTIVE DATE”). ANY USE OF THE SERVICES AFTER THE EFFECTIVE DATE MEANS YOU HAVE ACCEPTED THE UPDATED TERMS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT YOU DO NOT ACCEPT THE UPDATED GUEST TERMS OF SERVICE IS TO CEASE YOUR ACCESS TO AND USE OF THE SERVICES AND OUR WEBSITE.

These Terms include an agreement to resolve disputes by arbitration, which means that you and Vendora waive the right to a trial by jury and agree to resolve any and all disputes through binding arbitration on an individual basis.

If you are an individual, you must be at least 18 years of age, a U.S. resident, and legally capable of entering into contracts. If you are an entity, organization, or company, or acting on behalf of one, you represent and warrant that you are an authorized representative of such entity, and that you have the authority to and agree to bind it to these Terms. You represent that you will not use the Services, directly or indirectly, for any fraudulent undertakings. When you pay for a Purchase made through Point of Sale, the App, or any other means offered by Merchant through Vendora, you authorize Vendora to charge your credit or debit card or other permitted payment method (“Payment Method”) on behalf of the participating Merchant from which you are making a purchase.

1. Services

Vendora provides a variety of technology products and services to Vendora Merchants. Such Vendora services enable grocery customers (“Guests”) to interact with Vendora Merchants in a variety of ways, including without limitation to (i) place orders for food, beverages, and other items provided by the Merchant (“Purchases”), (ii) communicate with a Vendora Merchant and vice versa (“Merchant Communications”); and (iii) participate in loyalty programs or any other promotions offered by Merchant. Additionally, Vendora assists Purchases with Merchants, through third-parties who operate as payment facilitators, and those third-parties process Guests’ payments to Merchants on behalf of each Merchant for those purchases with an eligible Payment Method (“Payment Transaction”).

1.1 Opening and Accessing a Merchant Account

When you use certain Vendora services, you can choose whether you would like to register and create a Merchant account (hereinafter “Merchant account” or “account”). If you create an account, you may save your credit or debit card and other personal information to make future orders or purchases faster and easier. You may make Purchases without creating an account, but you will not be able to save any personal information or preferences for future Purchases. In order to use the App, you must download the app to your mobile device and create a Merchant account. If you use the same email address or phone number for the App and/or any Merchant loyalty programs, you will be registered for one account across those services.

When you create an account, we will ask you for certain personal information such as your name, mobile number, and email address, which will be stored with Vendora to facilitate your use of the Services.  You may also choose at any time to store Payment Method information, which can be used to pay for future Purchases. Information on how we collect, use, and protect the personal information you provide to us can be found in our Privacy Policy. You agree to provide true, accurate current and complete information for your account registration, and you agree not to misrepresent your identity or your Payment Method information. It is your responsibility to keep the information you provide us up-to-date and accurate. 

Vendora may, in its sole discretion, terminate or refuse to approve registrations for Vendora accounts with or without cause or notice, other than any notice required by Applicable Law. At this time, Vendora Services are offered only to users residing in the United States.

1.2 Confidentiality.

You must ensure that any user IDs, passwords, and other access credentials for the Vendora Services are kept strictly confidential and not shared with any unauthorized person. You will be responsible for any and all actions taken using your and any of your authorized users’ accounts, passwords or access credentials, including the maintenance of all appropriate security. You agree to promptly notify Vendora promptly of any breach of security or unauthorized use of its account.  

1.3 Vendora is not a Party to Payment Transactions

Purchases and Payment Transactions you make through our Services are transactions between you and the Merchant only, not with Vendora or any of our affiliates. Vendora is not the seller of any product or service offered by Merchants and is not a party to any Payment Transaction facilitated through the Services.

1.4 Using your Account

Once you have created your account, you will be able to make Purchases from Merchants through the Digital Ordering features and the App. You can make changes to your account information by logging in on any Online Ordering page or within the App. You will also be able to view your recent account-related activity, including Purchase and Payment Transaction history, by logging in to your account.

You acknowledge and agree that all aspects of Purchases beyond the services that Vendora provides, as well as all engagement and interactions between the Merchant and you, are solely the responsibility of the Merchant.

1.4.1 Online Storefront.

Online Storefront features, including Online Ordering pages, Vendora Websites, and Branded Mobile App, allow you to make Purchases from a participating Merchant using your own computer or mobile device. You can also manage your Merchant account from any Online Ordering page by logging in. You can see your order history from that Merchant while you are logged in.

Some Online Storefront features may allow you to place multiple orders as part of one Purchase. When you place an order, you may be required to provide payment information prior to completing your Purchase. By providing your payment information for pre-authorization, you agree to pay the total amount shown when you submit the final portion of your order. If you fail to complete payment for your Purchase, the Merchant may be able to charge your payment method after a certain amount of time has passed.

1.4.2 Loyalty and Rewards.

Vendora provides technology services that enable Merchants to offer loyalty and/or rewards programs to Guests. By enrolling in any loyalty program offered by Vendora or by a Merchant using Vendora’s technology services, you expressly agree to these program terms.

You may enroll in a Merchant’s loyalty program by signing up at the Merchant or while placing an order, subject to the Merchant’s terms and conditions related to its loyalty program. Vendora does not control the Merchant’s terms and conditions related to its loyalty program. Once you have enrolled, you may earn points when you make Purchases from Merchants, which can later be redeemed for discounts or other benefits. If you initiate a return, chargeback, or refund, points associated with the Purchase may be revoked. You may check your current rewards balance by clicking the link you receive when you sign up for a Merchant’s loyalty program or through the Merchant’s online loyalty lookup page. When you enroll in a Merchant Loyalty program your payment card information may be linked to your Loyalty account. If you pay with a different payment card number and identify yourself as a loyalty member with a Merchant, the additional payment card number may be associated with your loyalty account in the future. You can remove linked payment cards by clicking the link you receive when you sign up for a Merchant’s loyalty program or through the Merchant’s online loyalty lookup page.

If you choose to enroll in a Merchant’s loyalty program, you agree that the Merchant may contact you using the contact method(s) you provide with program information, offers, and other marketing and transactional communications. Any information shared by Vendora with Merchants is subject to our Privacy Policy. Once a Merchant has received information you provide from Vendora, the use and governance of that information will be managed by the Merchant, which may have separate privacy practices and policies. Merchants may not send marketing messages to your mobile number unless you expressly authorize the Merchant to send you such messages.

Each Merchant is solely responsible for the operation and maintenance of its own loyalty program, including establishing the number of points that you may earn when you make Purchases, setting redemption thresholds, and determining how and when points may be redeemed for rewards. Merchants have the ability to modify their loyalty programs and/or to modify the points balance held by any individual Guest. Vendora is not responsible for notifying you in the event that the Merchant changes any element of its loyalty program or ceases to offer a loyalty program. The Merchant is solely responsible for communicating program or points balance changes to you.

Points earned through any loyalty program offered by Vendora or a Merchant using Vendora have no cash value and cannot be transferred, redeemed, or sold for cash. Loyalty programs may be based on spend, visit or transaction frequency, or any other manners of engagement, in the Merchant’s discretion. Subject to notice requirements under Applicable Law, Vendora reserves the right, in its sole discretion and at any time, to modify, suspend, terminate, revalue or cancel its own loyalty program and/or the technology services that enable Merchants to offer loyalty programs through Vendora. In the event Vendora terminates any loyalty program offered by Vendora or by a Merchant, Vendora will, in accordance with the Applicable Law, maintain records of Guest’s loyalty points for one year following termination of the loyalty program in the event the loyalty program is reinstated within one year of termination. Vendora reserves the right to adjudicate any discrepancies or disputes regarding rewards allocations or these program terms in its sole discretion and you agree to abide by any such adjudication.

See Appendix A of the Merchant Agreement for more information.

1.4.3 Google-Enabled Software Applications

As part of the Services, Vendora may offer mobile applications that are intended to be operated in connection with products made commercially available by third parties that operate using the Android operating system, which is owned by Google Inc. (“Google”, and such software, “Google Software”). With respect to the Google Software, in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:

1.4.3.1 Vendora and you acknowledge that these Terms of Service are entered into between Vendora and you only, and not with Google, and that, notwithstanding anything to the contrary herein, as between Vendora and Google, Vendora, not Google, is solely responsible for Google Software and the content thereof.

1.4.3.2 You may not use Google Software in any manner that is in violation of or inconsistent with the usage rules set forth for Google Software in, or otherwise be in conflict with, the then-current Google terms of service available at: https://play.google.com/intl/en-us_us/about/play-terms.html (the “App Store Terms of Service”).

1.4.3 Apple Terms of Use

If you access or download the App from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement.

1.5 Merchant Responsibilities

You hereby acknowledge and understand that each Merchant is solely responsible for all aspects of its own day-to-day operations, including provision of food and beverages (by any method, including through delivery), service, environment, and overall quality and accuracy.

1.5.1 Compliance.

You hereby acknowledge and understand that each Merchant is solely responsible and liable for all marketing, selling, pricing, packaging, and provision of any products or services offered to Guests through the Services in compliance with all Applicable Law. Vendora makes no representation or warranty regarding whether a Merchant holds any applicable permit, license, registration, or other credential for its business; whether representations by a Merchant are true and accurate; or whether a Merchant complies with Applicable Law, and Vendora is not responsible for the quality of the products or services provided by Merchants.

1.5.2 Alcoholic Beverages.

Certain Merchants may hold alcoholic beverage licenses and sell alcoholic beverage products. The Merchant holding the alcoholic beverage license must approve your Purchase before the Purchase will be finalized, and only upon acceptance of the order by the Merchant will your Payment Method be charged. The portion of the funds charged to your Payment Method which pertains to your alcoholic beverage product Purchase may be held in an account for the benefit of the alcoholic beverage supplier in compliance with Applicable Law and Rules. Vendora acts as a third-party technology provider to and facilitates payment processing on behalf of the Merchant, and has no responsibility or liability to you or any other person for any alcoholic beverage products you may purchase from a Merchant or for any Merchant’s compliance with Applicable Law, including without limitation, local regulations regarding sale of alcohol. By making a Purchase through the Services for alcoholic beverage products, you represent and warrant that (i) you are twenty-one (21) years of age or older (ii) you are not procuring alcoholic beverage products for a person under twenty-one (21) years of age and, (iii) you will provide bona fide government issued photo identification evidencing your age.

1.6 Closing your Account

You may close your Merchant account at any time and without cost, but you will remain liable for any outstanding Purchases as well as any fees or other charges incurred. Vendora will not issue refunds for amounts previously incurred through our Services once you close your account.

Guests can close their accounts by emailing support@vendora.io. Please review our Privacy Policy for further information about our practices regarding your personal information.

In certain cases, we may not allow you to close your account, including but not limited to:

• to evade an investigation;

• you have open or pending Purchases or Payment Transactions; or

• if you owe money to Vendora or a Merchant due to your use of the Services.

2. Data Privacy and Security

The privacy and security of your personal information is important to us. Vendora’s Privacy Policy describes what information we collect about you, how we may use personal information and the security measures we have taken to protect your personal information. We encourage you to read the Privacy Policy carefully, as it forms a binding part of these Guest Terms of Service and contains important information about your rights.

3. Purchases

Vendora makes available the Services and Payment Transactions for Purchases are made through third-party service providers, Stripe and World Pay, on behalf of the Merchants through third-party payment networks. Carefully read the privacy policies and terms of service of any third-party payment facilitator used by Merchant before providing any of information related to your Payment Method or making a Purchase with Merchant.

When you make a Purchase, you authorize those third-party payment facilitators, as agents for the Merchant, to charge in the amount of the Purchase (including any gratuities, fees and taxes) to your Payment Method as well as any credits in connection with chargebacks, reversals, refunds or adjustments. The Merchant submits the Payment Transaction to the payment network and processes the Payment Transaction through the Vendora Services. Upon Vendora receiving the proceeds of the transaction, your payment obligation to the Merchant will be deemed completed (except in the case of a later chargeback or reversal).

You must provide a valid Payment Method to pay for your Purchases made through any of the Services. You authorize Vendora to confirm your Payment Method is in good standing with the issuing financial institution. In order to do so, Vendora may obtain an authorization to charge your Payment Method for a Payment Transaction. This authorization may reduce your available funds balance by the authorization amount until the Payment Transaction is actually charged to your Payment Method and the proceeds are processed and settled. Please contact your Payment Method issuer if you have questions regarding the status of an authorization or of a charge to your Payment Method. You agree that Vendora, on behalf of the Merchant, may resubmit a Payment Transaction for processing to a payment network in the event a prior Payment Transaction was declined or returned.

If you choose to store Payment Method information with Vendora via any of the Services for your convenience and use in future transactions, you agree that Vendora may receive up-to-date information on your Payment Method information (such as card number or expiration date) through services available from the card networks and may update your Payment Method credentials stored with Vendora (if you choose to store your Payment Method credentials) from time to time.

We may establish limitations concerning use of the Services, including without limitation individual or aggregate transaction limits on the dollar amount or number of Payment Transactions you may make within certain time periods. We may decline to process any Payment Transaction without any notice to you. We may delay processing of or hold or cancel processing of any Payment Transaction upon the direction of the Merchant or if we believe, in our sole discretion, that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates Applicable Law and Rules, these Terms of Service, or any other policies.

Payments made through the Services are also subject to the terms of your agreement with your Payment Method issuer. You are solely responsible for any charges or fees that may be imposed by your Payment Method issuer as a result of using the Services.

4. Permitted Activities

By using the Services, you agree that:

• You will not use the Services in any way that violates Applicable Law, these Terms, or any other policies.

• You may only use the Services to make Purchases of a legitimate, bona fide product or service that is purchased from a Merchant. The Services may not be used to transfer money or process a Payment Transaction that is unrelated to a purchase of a product or service from a Merchant.

• The information that you upload or post in connection with the Services does not infringe on anyone else's intellectual property or proprietary rights or otherwise conflict with the law or the rights of others.

• You will not upload, post or otherwise transmit through the Services any content that contains any viruses, trojan horses, time bombs, or any other harmful programs or elements.

• You will not provide false information about yourself to us, impersonate any other person, collect information about other users, or otherwise attempt to mislead others about your identity or the truthfulness or accuracy of the data you transmit through the Services.

• You will not damage, disable, disrupt, overburden, interfere with, or attempt to gain unauthorized access to any portion of our Services, computer systems, servers or networks, or any other person’s use and enjoyment of the Services.

• Vendora may suspend or terminate your use of the Services at its sole discretion for any actual or suspected violation of these limitations or other applicable policies or rules referenced in these Terms of Service.

5. Fees

Vendora may charge you a fee to make Purchases from Merchants using Vendora Services. Such a fee may be referred to as an “Order Processing Fee”, “Service Fee”, “Convenience Fee” or other terminology. Such fee may be charged by and paid to Vendora. We reserve the right to charge additional fees in the future. Any fees applicable to a Purchase or Payment Transaction you make will be clearly disclosed to you prior to the completion of your Purchase.

Merchants may charge you fees as well as taxes in addition to the price of the products or services you purchase. You may also be permitted to provide a gratuity. By making a Purchase through the Services, you agree to pay all such charges, including gratuities, fees and taxes. All amounts to be charged to your Payment Method associated with your Purchase will be displayed to you before you complete your Purchase.

6. Order Changes, Cancellation, Refunds and Customer Service

Merchants each set their own cancellation and refund policies. Once a Purchase has been made through the App or any Point of Sale feature, you will need to contact the Merchant directly to inquire if you can make a change to or cancel the Purchase or whether you may receive a refund.

For questions or customer service regarding a Purchase or the product or service provided by a Merchant, please contact the Merchant directly. For the App, each Merchant’s contact information for customer service is available on its App listing. Vendora is not responsible for any Merchant service issues or content errors or inaccuracies related to a Merchant’s website, menu, or other materials.

For technical questions that relate to your use of Vendora app, please email support@vendora.io.

7. Promotions and Gift Cards

When you use the Merchant App, you may be eligible to use codes (“Promotion Codes”) at checkout or may otherwise receive promotional offers on purchases (“Promotions”), subject to any terms and conditions of the specific Promotion Code or Promotion, as displayed on our Websites, on the App, or related print, social media, or digital marketing materials. The promotional value may be issued by Vendora or by a Merchant. Promotion Codes may not be redeemed for cash and are non-refundable and non-transferrable. Vendora or the Merchant reserve the right to modify, suspend, terminate, or alter the terms of any Promotion Code or Promotion at any time. Promotion codes may not be reused in the event of a cancellation and/or refund.

Merchants may make gift cards available for purchase, either as physical gift cards or as electronic gift cards (collectively “Gift Cards”). Vendora may provide the software to assist with gift card issuance, but the Merchant is solely responsible for Gift Card issuance and management, for communicating any and all terms and conditions connected to such Gift Cards (which terms and conditions are controlled by Merchant and not by Vendora), and for compliance with applicable laws, rules and regulations.

8. Disclaimer of Warranties, Waiver and Limitation of Liability

8.1 DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

NEITHER VENDORA NOR ITS THIRD-PARTY PROVIDERS WILL BE LIABLE OR RESPONSIBLE FOR ANY PRODUCTS OR SERVICES PROVIDED BY MERCHANTS THAT ARE A CAUSE OF INJURY OR THAT ARE UNACCEPTABLE OR DO NOT MEET YOUR REQUIREMENTS OR EXPECTATIONS.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, VENDORA AND ITS THIRD-PARTY PROVIDERS HEREBY EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT AND QUALITY. VENDORA RELIES UPON MERCHANT TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. VENDORA DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICES 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 REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.

VENDORA AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING (I) WHETHER THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES; (III) THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES; (IV) WHETHER THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR (V) WHETHER THE QUALITY OF THE SERVICE, OR PRODUCTS OR SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VENDORA OR A THIRD PARTY THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

YOU ACKNOWLEDGE THAT NEITHER VENDORA NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT NEITHER VENDORA NOR ITS THIRD-PARTY PROVIDERS ARE RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, OR OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WITHOUT LIMITING THE FOREGOING, NEITHER VENDORA NOR ITS THIRD-PARTY PROVIDERS WARRANTS OR GUARANTEES THAT ANY OR ALL SECURITY BREACHES OR ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES.

8.2 Waiver of Liability

You acknowledge and agree that the Merchant is the seller of the food, beverages and related products and services which you may order and pay for through the App. The Merchant is solely responsible for any and all damages, claims, liabilities, costs, injuries or illness caused in whole or in part by the Merchant. Merchant is also solely responsible for any unclaimed property liability which may arise from Purchases, including gift cards, paid for but not received by you.

8.3 LIMITATION OF LIABILITY

IN NO EVENT WILL VENDORA BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF VENDORA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW VENDORA’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO ONE HUNDRED DOLLARS ($100).

8.4 State Exemptions

Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, VENDORA’S LIABILITY OF WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8.5 Reliance on Limitations

Each party acknowledges that the other party has entered into these Terms relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.

9. Force Majeure

Vendora will not be liable for any failure or delay resulting from any condition beyond its reasonable control, including but not limited to governmental action or acts of terrorism, earthquake, fire, pandemic, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

10. Indemnification

You agree to defend, indemnify and hold harmless Vendora and its directors, officers, employees, affiliates and agents from and against any and all third party claims, liability, damages, expenses and costs actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of these Terms or any other policy; (b) your access to, use, or misuse of the Third-Party Content or Services; and (c) your infringement or infringement by any other user of your account, of any intellectual property or other right of any other person. Vendora will provide notice to you of any such claim, suit, or proceeding. Vendora reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting Vendora’s defense of such matter.

11. Ownership of Content and Use of Trademarks

See Intellectual Property Policy for more information.

12. Termination of the Terms of Service

These Terms of Service continue to govern your use of the Services unless and until such time as you or we terminate your use of any applicable Service(s). Upon termination, you will lose access to the relevant Services, and we may delete any information stored regarding you or your transactions through the Services. Termination of your use of any of the Services does not relieve you of the obligation to pay for any Purchases made as well as related fees and charges already incurred. In the event of termination of your use of the Services by you or us, we will not provide any refunds for amounts previously paid through the Services.

Vendora reserves the right, in its sole discretion, to limit, suspend, or terminate your Vendora account and/or access to all or any part of the Services at any time and for any reason without notice to you and without liability to you or to any third party. Additionally, any of the Services, or any feature of portion thereof, may be modified, replaced, suspended, or terminated, without or notice at any time, in Vendora’s sole discretion, without liability.

13. Electronic Communications (including E-Sign Disclosure and Consent)

This section 13 describes how Vendora delivers communications to you electronically. We may amend these terms from time to time, and if we make substantial changes, we will provide you with reasonable notice in accordance with any communication preferences you have given to us, and by posting notice of the updates on our Website.

13.1. Consent for Electronic Communications

You agree and consent to receive electronically all communications, agreements, disclosures, notices and documents (collectively “Communications”) that we provide in connection with your Vendora account and the Services we provide. We may at times be required to provide you with Communications in written form, which you agree to receive electronically instead of in paper form, including by sending via electronic mail to the email address you provide to us, or by posting notice or communicating with you via the Vendora or Merchant app or our website. Communications include these Terms and any and all other agreements or policies to which you must agree in order to use the Services, including updates to those agreements and policies; payment authorizations and transaction receipts or confirmations customer service matters; and any other communication related to your use of the Services.

It is your responsibility to keep your email address accurate and up to date so that Vendora can communicate with you. You can update the email address associated with your Vendora account by logging in and accessing the Profile section within the Vendora app or any Online Ordering page.

All Communications sent in electronic format will be considered to be in “writing and are considered received by you upon posting through the Website or Vendora app, via push notifications to your device, or sending to you via electronic email or SMS, regardless of whether you have accessed that communication.

13.2. Consent to Contact Mobile Number

By voluntarily providing your mobile phone number to Vendora or through any Vendora Services, you confirm you are authorized to provide that number to Vendora and agree that Vendora may contact you at that number. If you provide a mobile number, you expressly agree that Vendora may contact you using automated telephone call, and SMS or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, informational, and operational purposes.

13.3. Term of Consent

Your consent to receive electronic Communications is valid until and unless you revoke it. You may revoke your consent at any time, however, consent to electronic Communications is a condition of some of our Services, and if you revoke it you will no longer be permitted to use the Services. If you wish to revoke your consent for electronic Communications, please contact support@vendora.io.

13.4. Methods of Agreement

You acknowledge and agree that by clicking on the “I Agree”, “Submit”, “Create Account” or similar button on the website, Online Ordering page, App or other feature offered under our Services and associated with these Terms or with any other electronic document authorizing us to provide the Services to you, you are indicating your intent to sign these Terms and/or other applicable agreement(s). You also agree that clicking on these buttons on the website, Digital Ordering feature or App shall constitute your electronic signature to these Terms or other such document displayed with the button(s) and relating to the Services. You further agree that your electronic signature on these Terms and any other document shall have the same legal effect under state and federal law as if you signed the documents in ink on paper.

13.5 Electronic Communications From Merchants

Transactional SMS: By using the Services and providing your email address and/or mobile phone number you consent to receive transactional text (SMS) messages and transactional email messages from Vendora and the Merchants that you transact with. Such communications may include, but are not limited to, requests for secondary authentication, receipts, reminders, order updates, and notifications regarding updates to your account or account support.

Marketing SMS: Merchants that you transact with may also send you marketing and promotional communications, and valid consent will be obtained where required. Such communications may be from the Merchant you transacted with and/or from other businesses within that Merchant’s restaurant group. Your consent to receive marketing SMS messages is not a condition of purchase. 

Short-Code SMS: Certain Vendora Services allow Vendora Merchants to utilize certain short code numbers for communications. When you provide your phone number through the signup flow for these Vendora Services, you are opting-in to receive text messages that may come from different SMS short code numbers, which code(s) may change from time-to-time without prior notice (the “SMS Short-Code”).  When you opt in for these programs you will receive a text message to confirm your signup for notifications related to the applicable Vendora Services. If you no longer wish to receive these text messages, text "STOP" to the SMS Short-Code. After you send the message "STOP", you will receive a reply message confirming that you have been unsubscribed. Please note that by replying “STOP,” you will be unsubscribed from receiving text messages for all of the Vendora Services using the SMS Short Code. If you would like to re-subscribe to receive notifications for any of the relevant Vendora Services, you can text or reply to the SMS Short-code with the word “Start”. If you need assistance with the programs utilizing SMS Short-Code you can reply to the SMS Short-Code with the keyword HELP, or you can get help directly by emailing support@vendora.io.

General: Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates may apply. Message frequency varies.  Text HELP at any time for help. You may opt-out of text messages by replying STOP. You may have to separately opt-out of notifications related to a specific Vendora Services. You acknowledge and agree that you may continue to receive text messages for a short time while your opt-out request is processed.  If you opt out of marketing text messages from a single Vendora Merchant you will only be opted out of marketing messages from that Merchant. You may opt-out of receiving marketing or promotional email communications we send by following the unsubscribe options on such emails. Merchants control and are responsible for the content in all Merchant Communications, which shall be deemed “Third-Party Content” as defined in our Intellectual Property Policy, and Vendora does not take any responsibility or accept any liability in connection therewith. Merchants are also responsible for ensuring that Merchant Communications are only sent where legally required consent has been obtained, and Vendora does not take any responsibility or accept any liability in connection therewith.   You acknowledge that opting out or unsubscribing from receiving communications may impact your use of the Vendora Services. 

14. Arbitration

14.1. Agreement to Arbitrate

This Section 14 is referred to as the Arbitration Agreement. You agree that any and all disputes or claims that have arisen or may arise between you and Vendora, whether arising out of or relating to these Guest Terms of Service or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by agreeing to these Terms, you and Vendora are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate, provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.

14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief

You and Vendora agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Vendora agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

14.3. Pre-Arbitration Dispute Resolution

Most concerns can be resolved quickly and to all parties’ satisfaction by emailing Vendora’s Customer Care team at support@vendora.io. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Vendora should be sent to Virtual Fulfillment Technologies, Inc. at 169 Madison Ave #2425, New York NY 10016, Attn: General Counsel. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and Vendora do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Vendora may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Vendora or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Vendora is entitled.

14.4. Arbitration Procedures

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and Applicable Law and Rules. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless you and Vendora agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by the AAA. If your claim is for $10,000 or less, Vendora 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 established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

14.5. Costs of Arbitration

Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.

14.6. Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

14.7. Severability

If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Sub-Section 14.1 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Sub-Section 14.1 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms will continue to apply.

15. Survival

Upon termination of your use of the Service or these Terms for any reason, in addition to this section, all sections that need to survive shall survive termination.

16. Assignment

You may not assign these Terms or any rights or obligations hereunder, by operation of law or otherwise, without our prior written consent and any attempted assignment may be void. We reserve the right to freely assign these Terms and the rights and obligations hereunder, to any third party without notice and consent. Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.

17. Governing Law

Any action, claim, or dispute related to these Terms of Service will be governed by the laws of the Delaware, excluding its conflicts of law provisions, and controlling U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act will not apply to these Guest Terms of Service.

18. Miscellaneous

If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. Failure of Vendora to act on or enforce any provision of these Terms will not be construed as a waiver of that provision or any other provision herein. No waiver will be effective against Vendora unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Vendora and you, these Terms, including any Vendora policies governing the Services referenced herein, constitute the entire agreement between you and Vendora with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between you and Vendora with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import.