Last Updated March 25, 2021
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND MUHYL.
- Acceptance. To access, browse, or use the Site, you must: (a) be at least 18 years old; (b) reside in the United States; and (c) agree to be unconditionally bound by these Terms. You must be of legal age and capacity to form a binding contract to accept the Terms. If you are using or accessing the Site on behalf of a company or other entity (“Entity”), you represent, agree, and warrant that you are authorized to act on behalf of the Entity and to bind such Entity to these Terms. You accept these Terms by clicking to accept or agree to the Terms where this option is made available on the Site, in any agreement or electronic form, or by simply visiting the Site. ACCEPTANCE OF THESE TERMS IS REQUIRED TO USE THE SITE AND ANY USE OF THE SITE SHALL CONSTITUTE ACCEPTANCE OF THESE TERMS. These Terms will remain in effect while you use the Site. If you do not agree with any of these Terms, do not access or use the Site.
- The Site. The Site online marketplace venue that connects registered food vendors (“Vendors”) registered buyers (“Buyers”) and enables Vendors to list menu items at prices set by the Vendor and accept and track orders. Vendors fulfill orders, take payment, and deliver orders independently using their own facilities, staff, payment processors, and delivery service. Vendors offer their food items within their chosen geographic area and set the days, and times, for pick-up or delivery. Buyers can choose items from one or multiple Sellers at the same time. Menu items posted to the Site by Vendors are listed in the order they are received by Muhyl, and items are sorted by time. Vendor and Buyer must contact each other directly to confirm the time and method of payment the Seller will accept. If two or more items by the same or different Vendors are offered at the same time, the Site will automatically randomize the order in which those items are listed.
Please note that Muhyl is not a retail store, restaurant, food delivery platform, merchandise delivery platform or food preparation entity. In addition, Muhyl does not guarantee the quality of what Vendors sell and does not independently verify, and is not liable for, representations made by Vendors regarding their products on the Site. Muhyl is not the retailer of any products offered by Vendors, nor is it in the delivery business or a common carrier. Muhyl provides a website that facilitates the transmission of orders by Buyers to Vendors for fulfillment and/or delivery by the Vendors. Muhyl shall not be liable or responsible for any order fulfillment, payments, pickups, or delivery services provided, or any errors or misrepresentations made, by Vendors, whether directly or through the Vendor’s service providers. You hereby acknowledge that Muhyl does not supervise, direct, control, or monitor a Vendor’s activities and expressly disclaims any responsibility or liability for the services performed.
- Orders. The Site allows Buyers to purchase food items and other products and services from Vendors. Any such activity, and any interactions, disputes, terms, conditions, warranties, or representations associated with that activity, is solely between the Buyer and the applicable Vendor, and Muhyl shall have no liability, obligation, or responsibility for any purchase or transaction between a Buyer and a Vendor. For alcohol items, the Vendor may, at their discretion, require the Buyer to show government identification prior to fulfilling the order and/or refuse delivery of the items if the government identification does not pass muster for the Vendor’s inspection according to the Vendor’s own policies and applicable law. In no event shall Muhyl or its licensors be responsible for any content, products, services, or other materials on or available from third-party sites or third-party providers. Certain Vendors or other third-party providers of goods or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and Muhyl disclaims any and all responsibility or liability arising from such agreements. Items listed on the Site may not be available in all locations. Before making a purchase, Buyers should confirm with the Vendor that the Vendor is able to provide the desired product or service.
- Non-Circumvent. Buyers and Vendors are prohibited from circumventing Muhyl for the sale and purchase of items listed on the Site. Vendors and Buyers may not independently contact one another in any manner with the intent or purpose of circumventing use of the Site. Any violation of this non-circumvent term may result in the immediate termination of either the Buyer or Vendor account, or both.
- Not a Payment Processor. Muhyl is not a payment processor and does not accept or process payments for orders placed via the Site. Each Vendor is responsible for collecting payment for orders placed through the Site and any applicable taxes or fees using a legally compliant payment processing service. If a Buyer returns or refuses all or part of an order for any reason, the Vendor may issue a refund, offer credit toward a future order, and/or charge a return fee according to the Vendor’s own practices and policies. Muhyl is not responsible for and does not participate in payment transactions between Vendors and Buyers.
- Legal Compliance. You agree to use the Site in compliance with all applicable laws. If you are a Vendor, you acknowledge and agree that you, and not Muhyl, are solely responsible for compliance with applicable federal, state, or local laws, rules, regulations, or standards pertaining to your business and related to your use of the Site. You agree that Muhyl is not responsible for compliance with any laws applicable to Vendor or Vendor’s industry that are not generally applicable to Muhyl in its provision of the Site.
- Subscriptions. To use the Site, you must register with Muhyl and create a Vendor or Buyer account. Buyers may create an account on the Site for free, while Vendors use the Site on a subscription basis. If you subscribe to the Site as a Vendor, you agree to pay us the subscription fees posted at the time of subscription and taxes as described below, and to use the Site only as permitted by these Terms. We reserve the right to change our subscriptions or adjust pricing in any manner and at any time. We will give you at least 30 days’ notice prior to any price change or change to your subscription plan. You are responsible for maintaining the confidentiality of any login and password issued by us to you to use the Site, and you are responsible for all activities that occur using your login credentials.
- Free Trial Access. If you are a Vendor, your subscription may start with a free trial that lasts for the period specified when you registered as a Vendor and requested access to the free trial. If we offer you access to the Site, or a demonstration version of the Site, on a free trial basis, it is so that you can use the Site before purchasing a subscription to determine if the Site meets your needs. Free trial access to the Site and any demonstration versions are subject in all respects to these terms, except that we may discontinue the Site or your ability to use the Site or demonstration version at any time, with or without notice to you and without further obligations to you. Without limiting other provisions herein, under no circumstances will Muhyl be liable to you or any party for any problems, system or other failures, or data loss experienced in the course of your use of a free trial of the Site. Please note that we will convert your Vendor account from a free trial account to a subscription account at the end of the free trial period unless you cancel your subscription prior to the end of the free trial period.
- Beta Versions. We may make a new version of the Site available prior to its release to the general public for testing and evaluation purposes (“Beta Versions”). Beta Versions are subject in all respects to these Terms, except that we may discontinue the Site or your ability to use a Beta Version at any time, with or without notice to you and without further obligations to you. Beta Versions do not represent a final commercial software application and may contain bugs, errors, inconsistencies, or other problems that can cause system or other failures and/or data loss. You agree to provide us with any Feedback about the Site, including without limitation any problems or ideas for improvements that come to your attention during your use of the Beta Version. We do not grant any additional right to you under any copyrights, patents, trademarks, or trade secret information by permitting you to access, download, install, or use a Beta Version. All rights hereunder to the Beta Version will terminate upon the earlier of our: (a) discontinuation of your ability to use the Beta Version; or (b) commercial release of the Site.
- Billing and Payment. This section applies only to Vendors. By subscribing to the Site, you acknowledge and agree to the billing and payment provisions described herein. You are responsible for paying the fees associated with the subscription you select, as well as any and all applicable sales and use taxes for the purchase of your subscription based on the address that you provide when you subscribe. Your initial billing period may be less than a full month, in which case, your fees for that initial billing period will be prorated accordingly. You may change or cancel your subscription by logging into your Vendor account in the Site or by contacting email@example.com. Your change is effective immediately and applies to the entire monthly billing period during which you contacted us. Your cancellation is effective at the end of the then-current monthly billing period. All fees are quoted in United States dollars.
You must maintain a valid payment method on file with us. You agree that we may charge your credit or debit card or withdraw amounts from your designated account at your depository institution or charge any other payment method that you have on file with the fees due hereunder, any sales and use taxes and any late fees or interest (as described below). All payments are processed through a secure third-party payments gateway or via check, electronic wire transfer, or ACH transfer. You represent and warrant that the payment information you provide to us is correct and accurate and you are using a form of payment that you are legally authorized to use for this purpose. We will not be liable or responsible for any delay, failure, or interruption of payments due to inaccurate or missing information. You agree that you are solely liable for any payment or credit card fraud, abuse, or unauthorized use by you or others.
If you do not pay on time or if we cannot charge the payment method you have on file for any reason, we reserve the right to either suspend or terminate your access to the Site. In addition, if any payment is not received within 30 days after the due date, then we may charge a late fee of $10 and we may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date paid. If your unpaid fees are referred to an attorney or collections agency, you shall pay all reasonable attorney’s fees or collections agency fees.
- License Grant. When you subscribe to the Site, we grant you a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to use the Site for your own personal, internal business, and non-commercial purposes (the “License”), subject to the terms and conditions set forth herein. Neither the License nor any other provision hereof shall grant any rights in the Site or other intellectual property rights except the limited License of use set out in this section. You agree not to: (a) rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Site or any portion thereof (including the Content) or use it in any manner that is prohibited or not expressly authorized by these Terms; (b) copy, reverse engineer, translate, port, modify, or make derivative works of any portion of the Site; (c) violate or attempt to violate the security features of the Site; (d) use any device, software, or routine to interfere or try to interfere with the proper working of the Site or any activity being conducted on via the Site; or (e) use or try to use any device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Site other than the search engine or search agents that we make available via the Site and the generally available third-party web browsers. The License term shall be for the term of these Terms only.
- Software Requirements. In the event that Muhyl offers a mobile application version of the Site, you will need a compatible mobile telephone or handheld device, Internet access (if required by the mobile application), and the necessary minimum specifications (“Software Requirements”) to use the mobile application. The Software Requirements can be found on the relevant app store page. Mobile application software may be upgraded from time to time to add support for new functions and services. The mobile application may request certain privacy permissions from time to time including, but not limited to, access to your calendar, contact list, device camera or choosing images from your device or access to your device microphone and associated features.
You acknowledge that the terms of agreement with your respective mobile network provider will continue to apply when using the mobile application. Data and messaging charges may apply to your use of the mobile application or any text messaging or photo sharing features you use via the mobile application. You accept responsibility for any such charges that arise. If you are not the bill payer for the mobile telephone or handheld device being used to access the mobile application, you will be assumed to have received permission from the bill payer for using the mobile application. We reserve the right to amend or withdraw the mobile application at any time and for any reason. If you do not agree with our policies and practices, you should not download or use the mobile application.
- Service Access. We will use commercially reasonable efforts to maintain availability of the Site during your subscribed-to service times. You agree and understand that there will be times when the Site will not be available, such as scheduled maintenance times; outages; emergency maintenance; unavailability caused by software, hardware, other users; and causes beyond our reasonable control. We will make commercially reasonable efforts to notify you of planned downtime and unavailability of the Site. We are not liable for any delays, interruptions, or other transmission errors resulting from any lack of service, whether or not the cause is mentioned in this paragraph, or any lack of service caused by your device or your internet or wireless service provider.
- Privacy. Muhyl collects and processes Personal Information as described in our Privacy Notice. You hereby acknowledge that you have read and understand our Privacy Notice and consent to the collection and use of Personal Information as described therein.
- Communications. Muhyl may use your contact information to communicate with you about your use of the Site. We may send you service announcements or authentication messages by email. You understand that you receive these communications as part of your use of the Site, and you will not be able to opt out from receiving these service announcements and administrative messages. Muhyl may also send you marketing emails according to your communication preferences. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email. Additionally, by providing us with your wireless phone number, you consent to Muhyl sending you operational text messages to authenticate your account or for service purposes. You will not be able to use the Site without agreeing to receive these messages. If you opt-in to receive marketing text messages from Muhyl, you can unsubscribe from marketing messages by replying STOP or UNSUBSCRIBE to any of those text messages. Messaging and data charges may apply to any text message you receive or send. Please contact your wireless carrier with questions about messaging or data charges.
- Legal Compliance. You are solely responsible for your use of the Site. You hereby represent and warrant that you will use the Site in compliance with all applicable laws and regulations, including without limitation health and safety codes, food establishment, or other business license requirements, labor laws, and all other laws, regulations, and orders applicable to your industry and the jurisdiction from which you access or use the Site.
- Contents and Ownership. Unless otherwise expressly indicated, the information contained on the Site, including but not limited to all images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, written information, and screens appearing on the Site, and other materials, as well as names, logos, taglines, trade dress, and other trademarks displayed on the Site, are copyrights, trademarks, trade dress, or other intellectual property owned, controlled, or licensed by Muhyl (collectively, the “Contents”). The Contents are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary right laws and international conventions.
- Copyright. Nothing in these Terms is intended to transfer to you any rights to the Contents or grant you any license to the Contents, except as specifically set forth in these Terms or the applicable license terms pertaining to certain Site features. Without limiting the generality of the foregoing, you do not have permission to copy, reproduce, make derivative works from, distribute, republish, download, display, perform, post electronically or mechanically, transmit, record, or mirror any of the Contents without the prior written permission of Muhyl. You may only display, download, and print in hard copy format the Contents for the purposes of using the Site as an internal or personal business resource. Only a duly authorized officer of Muhyl may grant permission or a license to use any of the Contents; any attempted grant or similar promise by anyone other than a duly authorized agent of Muhyl is invalid.
- Trademarks. Muhyl’s registered and unregistered trademarks, as well as trade dress, including names, logos, taglines, trade dress, and other trademarks, may not be copied, imitated, or used, whether in whole, partial, or modified form, without the prior written permission of Muhyl. You may not use any meta tags or any other hidden text utilizing a Muhyl name, trademark, or product name without Muhyl’s prior written permission. Third-party trademarks and service marks used on the Site are the property of their respective owners, and we use them with their consent. Muhyl and the other licensors of the marks on the Site reserve all rights with respect to all Contents and all intellectual property.
- User Content. You may be able to submit suggestions, comments, improvements, photographs, video clips, reviews, ratings, favorites, liked items, bookmarked Vendors, questions, comments, public messages, ideas, designs, concepts, inventions, feedback, and other content (collectively, “User Content”) (that may or may not be viewable by other users) through the interactive areas of the Site. You acknowledge that when you submit User Content on or through the Site, the User Content shall be deemed, and shall remain Muhyl’s property. Muhyl does not provide any compensation for User Content that you submit on or through the Site. You agree that User Content that you submit on or through the Site shall be deemed to be non-confidential and non-proprietary, and we shall have no obligation of any kind with respect to such information.
In the event this grant is not sufficient for us to fully realize and use the User Content, you grant us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use and incorporate into the Site any of your User Content. By providing User Content, you are representing that the User Content is not subject to any intellectual property claim by a third party or any license terms which would require products or services derived from that User Content to be licensed to or from, or shared with, any third party. You further grant Muhyl a license to use your username and/or other user profile information, including, without limitation, your ratings history and how long you have been a Muhyl user, to attribute User Content to you, if we choose to do so. Further, Muhyl shall be free to use any ideas, concepts, know-how or techniques contained in User Content for any purpose whatsoever in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you, including but not limited to developing, manufacturing, and marketing products incorporating such information. In the interest of clarity, the license granted to Muhyl shall survive termination of these Terms or your use of the Site. Notwithstanding the foregoing, our use of your personal data shall be governed by our Privacy Notice.
You acknowledge and agree that all User Content that you submit is your sole responsibility. We reserve the right, but have no obligation to, monitor, review, screen, post, remove, reject, modify, or store User Content at any time and for any reason without notice. We may refuse, alter, or remove User Content without notice for any reason at our sole discretion. We do not endorse any User Content, and the User Content posted does not reflect our opinions, views, or advice. We take no responsibility and assume no liability for any User Content that you or a third party submits to or through the Site, nor do we assume any liability for any action or inaction regarding transmissions, communications or content provided by any user or third party.
You understand that we do not control, and are not responsible for, User Content, and that by using the Site, you may be exposed to User Content from other users that you deem offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors, or inaccuracies. You agree that you will indemnify, defend, and hold harmless Muhyl for all claims resulting from User Content you submit. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event, you will cooperate with us in asserting any available defenses.
- Ratings and Reviews. The Site may allow you to rate or submit reviews of Vendors (“Ratings”). Such Ratings are considered User Content and are governed by these Terms, including, without limitation, your agreement regarding your use of the Site. Ratings are not endorsed by Muhyl, and do not represent the views of Muhyl or of any affiliate or partner of Muhyl. Muhyl does not assume liability for Ratings or for any claims, liabilities, or losses resulting from any Ratings. All Ratings must comply with the following criteria: (a) you must have had first-hand experience with the Vendor; (b) you may not have a proprietary or other affiliation with either the Vendor or any of its competitors; (c) you may not draw any legal conclusions regarding the Vendor’s products, services, or conduct; (d) you may not promote or criticize a Vendor other than the one being Rated; (d) you may not include others’ personal information; and (e) your Rating must otherwise comply with these Terms. Any Rating that we determine, in our sole discretion, could diminish the integrity of the Ratings or the Site may be removed or excluded by us without notice.
- Acceptable Use. By using the Site or features thereof, you represent and warrant that: (a) any information you submit to us is truthful and accurate; (b) you will maintain the accuracy of that information; and (c) your use of the Site and its features does not violate any applicable law, rule, or regulation. Any information that you provide to us will also be subject to our Privacy Notice. You may not use the Site for any commercial purpose except as a Vendor receiving and fulfilling Orders for Buyers or when transacting business with Muhyl, or for any unlawful or wrongful purpose. You agree not to rent, retransmit, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Site or any portion of it or use it in any manner not expressly authorized by these Terms. You further agree not to copy, reverse engineer, translate, port, modify, or make derivative works of any portion of the Site. Tampering with the Site, conducting fraudulent activities via the Site, and all other illegal activities are prohibited and may subject a user to legal action and/or termination of your access to the Site.
You may not use our Contents for any purpose not expressly stated in these Terms, including in any way that might disparage us. Any other use of the Contents on the Site, including reproduction for purposes other than as noted above, without the prior written permission of Muhyl is strictly prohibited. You are strictly prohibited from violating or trying to violate the security features of the Site, such as by:
- Accessing data not intended for you or logging onto a server or an account that you are not authorized to access.
- Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures unless we expressly authorize that you do so in writing.
- Attempting to interfere with service to any user, host, or network, such as by means of submitting a virus to the Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing.”
- Sending unsolicited email, including promotions and/or advertising of products or services forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.
You hereby agree not to use any device, software, or routine to interfere or try to interfere with the proper working of, or any activity being conducted on, the Site. You further agree not to use or try to use any engine, software, tool, agent, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Site other than the search engine and search agents that we make available on this Site and other than the generally available third-party web browsers. If you violate our system or network security, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
- Notification of Infringement. It is Muhyl’s policy to respond to clear notices of alleged copyright infringement. This section explains the information that must be included in these notices and is designed to confirm with the provisions of the Digital Millennium Copyright Act (“DMCA”). Upon receipt of a DMCA compliant notice, Muhyl will expeditiously remove or disable access to the content that is the subject of the notice. If you are a copyright owner or an authorized agent thereof, and you wish to file a notice of infringement with us, then you may submit a notice to our Designated Copyright Agent at firstname.lastname@example.org with the following information in writing (you should speak with your legal counsel or See 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Muhyl Site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Muhyl to locate the material.
- Information reasonably sufficient to permit Muhyl to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. If you are unsure whether the material available online infringes your copyright, we suggest that you contact an attorney before sending us a notice.
The administrator of an affected site or the provider of affected content may make a counter notification under sections 512(g)(2) and (3) of the DMCA. If you elect to send us a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements):
- A physical or electronic signature of the subscriber.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Muhyl may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
- Consent to Do Business Electronically. By accessing the Site, registering with us, or typing your name into any of our electronic forms and indicating your acceptance or submission of information by clicking a box, you affirmatively consent to: (a) Muhyl communicating with you electronically; (b) receiving all applications, notices, disclosures, and authorizations (collectively, “Records”) from Muhyl electronically; and (c) entering into agreements and transactions using electronic Records and signatures. Please note that federal law treats electronic signatures as having the same legal force and effect as if they were signed on paper by hand, and online contracts have the same legal force as signing an equivalent paper contract in ink. You must have a computer or other web-enabled device, connection to the internet, an active email account, and the ability to receive and read PDF files to conduct business with us electronically. You agree to be responsible for keeping your own Records. You may print or download Records from the Site and keep them for your own reference. If you require assistance with your Records or if you wish to receive Records in paper format or to withdraw your consent to receiving electronic Records from us, please contact us at email@example.com. Agreements and transactions executed prior to this request will remain valid and enforceable.
- Disclaimer of Warranties. YOUR USE OF THE SITE IS AT YOUR OWN RISK. MUHYL MAKES NO EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITE OR RELATING TO THE AVAILABILITY, QUALITY, RELIABILITY, SUITABILITY, TIMELINESS, TRUTH, ACCURACY, OR COMPLETENESS OF THE SITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF VENDORABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MUHYL DOES NOT WARRANT THAT THE SITE WILL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECT WITHIN THE SITE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY MUHYL SHALL CREATE A WARRANTY WITHOUT A WRITING SIGNED BY MUHYL EXPRESSLY CREATING SUCH WARRANTY.
- Indemnification. YOU AGREE TO INDEMNIFY AND HOLD MUHYL AND ITS MEMBERS, DIRECTORS, SHAREHOLDERS, OFFICERS, AGENTS, PARTNERS, AND EMPLOYEES, HARMLESS FROM ANY LOSS, LIABILITY, COST, EXPENSE, CLAIM, DAMAGES, OR DEMAND, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES, DUE OR RELATING TO OR ARISING OUT OF: (A) YOUR USE OF THIS SITE IN VIOLATION OF THESE TERMS; (B) YOUR BREACH OF THESE TERMS; OR (C) ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS.
- Limited Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MUHYL BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF MUHYL KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
THE SITE CONNECTS VENDORS WITH BUYERS TO FACILITATE ORDER FULFILLMENT SERVICES. MUHYL WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY BUYER OR VENDOR, AND YOU EXPRESSLY WAIVE AND RELEASE MUHYL FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO VENDORS AND BUYERS. MUHYL WILL NOT ASSESS THE QUALITY, SAFETY, OR LEGALITY OF THE ITEMS PROVIDED BY VENDORS ON THE SITE, AND YOU EXPRESSLY WAIVE AND RELEASE MUHYL FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO VENDORS, AND THE ITEMS THEY PROVIDE. MUHYL WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN ANY BUYER OR VENDOR. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING YOUR USE OF THE SITE (WITH ALL THEIR IMPLICATIONS) RESTS SOLELY WITH YOU. IN ADDITION, WE WILL NOT ASSESS THE SUITABILITY, LEGALITY, OR ABILITY OF ANY THIRD PARTIES, AND YOU EXPRESSLY WAIVE AND RELEASE MUHYL FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SITE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE SITE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
THE QUALITY OF THE ORDER FULFILLMENT, PAYMENT TRANSACTION, AND DELIVERY SERVICES A BUYER RECEIVES FROM A VENDOR IS ENTIRELY THE RESPONSIBILITY OF THE VENDOR WHO ULTIMATELY PROVIDES THOSE SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE SITE, YOUR ITEMS MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE SITE AT YOUR OWN RISK.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL MUHYL BE LIABLE TO YOU FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AGGREGATE OF THE FEES PAID BY YOU TO MUHYL FOR ACCESS TO THE SITE DURING THE THREE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY OR, IF NO FEES WERE PAID DURING SUCH THREE MONTH PERIOD, ONE HUNDRED US DOLLARS ($100), IN EACH CASE, WHETHER OR NOT MUHYL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Class Action Waiver. YOU HEREBY WAIVE ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AGAINST MUHYL RELATED TO ANY CLAIM, DISPUTE, OR CONTROVERSY, AND, WHERE APPLICABLE, YOU HEREBY AGREE TO OPT OUT OF ANY CLASS PROCEEDING AGAINST MUHYL OTHERWISE COMMENCED ON OR AFTER THE EFFECTIVE DATE OF THESE TERMS.
- Arbitration Agreement. Please read this section carefully. This section affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions. YOU AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any controversy or claim between you and Muhyl arising out of or relating to: (a) these Terms, or the breach thereof; or (b) your access to or use of the Site; or (c) any alleged violation of any federal or state or local law, statute, or ordinance (each such controversy or claim, a “Claim”), shall be resolved exclusively by a binding arbitration administered by the Arbitration Service of Portland in accordance with its Commercial Arbitration Rules, with the arbitration to be held in Multnomah County, State of Oregon, USA. The arbitration shall be governed by the Federal Arbitration Act and by the internal laws of the State of Oregon, without regard to conflicts of laws principles. Claims shall be heard by a single arbitrator. The parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The prevailing party shall be entitled to an award of reasonable attorneys’ fees. In arbitration, the parties give up their right to have their Claim decided by a judge or jury, and their Claim is instead decided by an arbitrator. Discovery rights and appellate rights in arbitration are more limited than in court. The arbitrator shall issue a reasoned award in writing, including all findings of fact and law upon which the award was made.
YOU AND MUHYL AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND MUHYL AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SECTION, AND IF THIS SECTION IS FOUND TO BE INVALID, UNENFORCEABLE, OR ILLEGAL BY A COURT OF COMPETENT JURISDICTION, THEN SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
- Governing Law. NOTWITHSTANDING THE ARBITRATION AGREEMENT, IF ANY CLAIM IS NOT SUBJECT TO ARBITRATION, YOU HEREBY CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN MULTNOMAH COUNTY, OREGON, WHICH IS THE PLACE OF PERFORMANCE OF THESE TERMS. Muhyl controls and operates the Site from its offices within the United States. The Site is made available to users residing in the United States. If you choose to access the Site from another location, you do so on your own initiative and are responsible for compliance with applicable local laws. You acknowledge that you may not be able to access all or some of the Site outside of the United States, and that access thereto may not be legal by certain persons or in certain countries.
- Miscellaneous. The parties hereto agree that Buyers, Vendors, and Muhyl, and any other party hereto are independent contractors, and Muhyl is not a party to any transaction between users of the Site. No joint venture, partnership, employment, or agency relationship exists between you and Muhyl as a result of these Terms or your use of the Site. You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without prior written consent from Muhyl. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect. Muhyl’s failure to enforce any provision of these Terms will not be deemed a waiver of that provision or any other provision of these Terms. If any provision of these Terms is held invalid or unenforceable under applicable law, that portion shall be construed in a manner consistent with applicable law to accomplish, as nearly as possible, the objective thereof, or shall be severed from the document if, and solely, to the limited extent such construction is not possible, and the remaining portion of these Terms shall remain in full force and effect.
- Term and Termination. These Terms shall commence on the date you first access the Site and shall remain in effect as long as you access or use the Site. Either party may terminate the contract formed by these Terms at any time. If you wish to terminate these terms, discontinue use of the Site and delete your Buyer or Vendor account. If we wish to terminate these Terms with you, we will notify you by email or other means. Upon termination of these Terms: (a) the rights and licenses granted to you herein shall terminate as to the terminated rights; (b) you shall cease all use of the Site; and (c) we may at our own discretion remove and/or purge data, account information, and any other information obtained by us in connection with providing you the Site. We reserve the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. The terms and conditions set forth under the following section headings shall survive termination: Acceptable Use; Use Restrictions; Contents and Ownership; User Content; Disclaimer of Warranties; Limitations on Liability; Class Action Waiver; Arbitration Agreement; and Miscellaneous.
- Changes to These Terms. We are constantly trying to improve our Site, so these Terms may need to change from time to time. We reserve the right to modify these Terms at any time by updating this posting without notice. All changes are effective immediately when posted. If you use the Site in any way after a change to the Terms is effective, that means you agree to all of the changes.