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Terms of use

(Last modified on October 12, 2018)

1. Introduction and Definitions

Welcome to the FoodHero Website, Application, and Services. Our Services seamlessly connect the whole ecosystem of food waste – farms, producers, merchants and consumers – reducing the impact at each point. It connects food merchants to local consumers, allowing consumers to save on delicious food and everyone to be Heroes. We are confident that you will find our Services useful. These Terms of Use (the “TOU”) cover several different situations, so please refer to the following definitions for clarification:

“Application” refers to the free app for iOS or Android created and owned by FoodHero, which allows Heroes to use the Services to purchase and receive Products, and related functionalities. Application also includes any Application updates and upgrades that FoodHero may provide to you or make available, or that you obtain after the date you obtain the initial copy of the Application, to the extent that such items are not accompanied by a separate TOU. The Application may be specified as either “iOS Application” or “Android Application”, for use with respect to the Application’s operating system environment.

“Device” refers to the handheld or tablet device through which you may be accessing and using the Services.

“FoodHero” refers to FoodHero Market Inc., a duly incorporated company in the Province of Quebec, Canada. Where the present TOU refer to “FoodHero”, they may refer to FoodHero Market Inc. and / or its affiliates, subsidiaries, employees, officers, directors, subcontractors, agents, partners or representatives, depending on the context. Any reference to “we”, “our”, or “us” in these TOU refers to FoodHero Market Inc. In these TOU, a Website visitor or Services user may be referred to as “you”. When a Hero has an account and is logged in, they may be referred to as a “Logged-in User”.

“Hero” refers to a member of the public who downloads the Application, creates an account and uses the Application on their Device to order and purchase Products from Stores, and use the related functionalities.  

“Products” refers to the food items that Heroes may purchase or receive from Stores using the Application.

“Services” are the proprietary software services that FoodHero has developed that allows Heroes to order and purchase Products from Stores through the Application, and various related functionalities.

“Stores” refers to physical real-world locations from whom Heroes can purchase and receive Products.

“Website” is the website located at http://www.foodhero.com which is owned and operated by FoodHero, and includes all subdomains, present and future.

Additional definitions shall be made throughout these TOU, but they will be recognizable as they will be capitalized, bolded, and in quotation marks. The definitions found in these TOU shall also apply to the Privacy Policy.

2. Acceptance and Modifications

By visiting the Website, or downloading, using or accessing the Application on your Device, or by registering for an account you hereby accept to be bound by these TOU without any reservations, modifications, additions or deletions. You may also have explicitly accepted the TOU and Privacy Policy following your installation of the Application and launch of the Application for the first time. If you do not agree to all the provisions contained in the TOU, you are not authorized to use the Website or Services. If you have downloaded the Application and do not agree to all the provisions of the TOU, you must delete the Application from your Device. The TOU are a legal and binding agreement between you and us.

If you are an individual using the Website or Services on behalf of a corporation or other registered organization (“Legal Entity”), you represent and warrant that you have the capacity and authority to enter into the TOU on behalf of the Legal Entity, and hereby agree to be bound by all the terms herein on behalf of that Legal Entity.

In the context of the Application, these TOU may also be referred to as, and are equivalent to, an “End User License Agreement” or “EULA”.

FoodHero reserves the right, at any time and without prior notice, to modify or replace any of these TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website or Services following the posting of any changes to the TOU constitutes acceptance of those changes. If there are any significant changes to the TOU that materially affect our relationship with you, we will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account, by posting a prominent notice when you log in to your account for the first time following those changes, or by posting a prominent notice in the Application and / or on the Website. Any order for Products made will be subject to the TOU applicable at the time the order was placed.

These TOU should be read in conjunction with the Privacy Policy, as both of these documents govern your use of the Services.

3. Contacting Us

If you have any questions about these TOU please contact:

FoodHero Legal Services
[email protected]

or:
FoodHero Legal Services
2200 rue Stanley
Montreal, Quebec
Canada
H3A 1R6

4. General Code of Conduct for Use of the Website and Services

In addition to the more specific use requirements and prohibitions found elsewhere in these TOU, by visiting the Website, using the Services or downloading and using the Application, you agree to:

  1. Not use the Website or Services in any manner that in any way violates these TOU or any other applicable policy posted by FoodHero;
  2. Not use the Website or Services in any manner that violates any intellectual property rights of FoodHero or any third party;
  3. Not use the Website or Services in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
  4. Not use the Website or Services in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to FoodHero or a third party, or to damage or obtain unauthorized access to any system, data, or other information (whether personal information or not) of FoodHero, other Services users or Heroes, or any other third party;
  5. Not: (1) take any action that imposes or may impose (as determined by FoodHero in its sole discretion) an unreasonable or disproportionately large load on FoodHero’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Website or Services or any activities conducted through the Services; (3) bypass any measures FoodHero may use to prevent or restrict access to the Services or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website or Services; or (5) harvest or scrape any content from the Website or Services in an unreasonable manner;
  6. Not use the Website or Services to in any way collect information (whether personal or not) of any third party or in violation of FoodHero’s Privacy Policy;
  7. Not interfere with any third party’s use or enjoyment of the Website or Services;
  8. Not encourage conduct that would constitute a criminal offense or give rise to civil liability;
  9. Not attempt to do any of the foregoing prohibitions;
  10. Use the Website and Services in good faith, and in compliance with all applicable local, provincial or state, national, and international laws, and in compliance with your obligations under these TOU.

5. Use of the Application

  1. The Application is licensed, not sold. FoodHero grants you the non-exclusive, non-transferable, non-sublicensable, limited right and license to install and use the Application solely and exclusively for your personal use on your Device, or the use of any other third party with access to the Device that you control and with your permission, and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions for the iOS Application or the Google Play Terms of Service for the Android Application.  The iOS App Store or Google Play or any other distributor for apps may be referred to in these TOU as a “Third-Party Application Distributor”.
  2. You may not use the Application in any manner that could damage, disable, overburden, or impair the Application (or servers or networks connected to the Application), nor may you use the Application in any manner that could interfere with any other party’s use and enjoyment of the Application (or servers or networks connected to the Application).
  3. You agree that you are solely responsible for (and that FoodHero has no responsibility to you or to any third party for) your use of the Application, any breach of your obligations under the TOU, and for the consequences (including any loss or damage, direct or indirect, which FoodHero may suffer) of any such breach. Where a third party uses the Application on your Device with your permission, you are solely responsible for conforming to these TOU and any breach thereof shall be your responsibility. Where a third party gains control of your Device without your permission, we strongly suggest taking action (especially a remote wipe or other procedure to lock out your Device) as FoodHero cannot be held responsible for any misuse of, or damage to, your Device (whether in relation to the Application or not) in such circumstances.

6. Privacy Policy and Permissions for the Application

  1. Our Privacy Policy explains how FoodHero treats your Personally-Identifiable Information (as that term is defined in the Privacy Policy) and protects your privacy when you use the Website or Application. By installing, accessing or using the Application or using the Website you explicitly agree to the use of your data in accordance with the Privacy Policy, which may be updated from time to time and without notice.
  2. By installing, accessing or using the Application or using the Website or Services, you consent to those information collection and usage terms as described in the Policy.
  3. This paragraph describes how the Application accesses functions of your Device that are not part of the Application and are developed by third parties. These are known as “permissions”, and you agree that FoodHero has the right to access third-party computer code on your Device in this manner. The following is a complete listing and description of what functions on the Device that were developed by third parties are accessed and / or modified by the Application on your Device. Where noted, these will function with explicit user permission only. You acknowledge that denying explicit permission may affect or reduce your user experience with the Services.
    • Location - Allows the Application to access your current location to find Stores near you (user permission only)
    • Notifications - The Application may send you notifications to alert you about available Products and other information (user permission only)
    • Camera – The Application may access your camera to take photos, for example to initiate a refund on a Product (user permission only)
    • Device & App History - The Application may read this log data stored on your Device
    • Wi-Fi Connection Information - The Application may retrieve network connectivity and speed information from your Device

7. Accessing and Downloading the iOS Application from the Apple iTunes Store, and Related Acknowledgements

  1. You acknowledge and agree that (i) these TOU are concluded between you and FoodHero only, and not Apple, and (ii) FoodHero, not Apple, is solely responsible for the iOS Application and content thereof. Your use of the iOS Application must comply with the Apple Media Services Terms and Conditions, which you are responsible to review from time to time.
  2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Application.
  3. Apple will have no warranty obligation whatsoever with respect to the iOS Application. As between FoodHero and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of FoodHero, or as further specified and limited hereinafter.
  4. You and FoodHero acknowledge that, as between FoodHero and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the iOS Application or your possession and use of the iOS Application, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  5. You and FoodHero acknowledge that, in the event of any third-party claim that the iOS Application or your possession and use of the iOS Application infringes that third party’s intellectual property rights, FoodHero, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, as specified in section 5 above and elsewhere in this TOU.
  6. You and FoodHero acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these TOU as related to your license of the iOS Application, and that, upon your acceptance of these TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce these TOU as related to your license of the iOS Application against you as a third-party beneficiary thereof.
  7. ou acknowledge that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  8. Without limiting any other of these TOU, you must comply with all applicable third-party terms of agreement when using the Application.
  9. You acknowledge that updates to the iOS Application are subject to the approval of Apple, and FoodHero and its affiliates, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”) shall not be held responsible for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from any delay in the approval of updates by Apple.

8. Accounts, Passwords and Logged-in Users

a. Account Creation and Conditions

In order to use most of the Services, you are required to create an account. Accounts are free, and are available to anyone who provides the requisite information, subject to these TOU. The information required to create an account is the following: your email address and phone number. You may also optionally submit your name, mailing address, gender, age range, location, a profile picture and organization (if applicable). This submitted information may be referred to in the present TOU or the Privacy Policy as “Account Information”.

You understand you are responsible for any activity that occurs through your account and agree you will not sell, transfer, license or assign accounts, contacts, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, FoodHero prohibits the creation of, and you agree you will not create, an account for anyone other than yourself. You represent and warrant that all information provided or provided to FoodHero upon registration and at all other times will be true, accurate, current and complete and you agree to update information as necessary to maintain its truth and accuracy.

As part of the account registration, you will be asked to choose a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties, and that conforms to the password requirements displayed on the registration form. If you forget your created password, a reset can be requested through your account providing the email used at sign up, and FoodHero will send a reset link, though we may request additional information to verify your identity.

You may also choose to use valid Facebook credentials in order to log into the Services and use them.

If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session, or not leave a logged-in account unattended for any period of time. FoodHero and / or its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services with your account information and accessing your account through any means, and disclaims any responsibility in this regard.

b. Premium Accounts

Once you have signed up for an account and are a Logged-in User, you may choose to sign up for additional benefits available to a “Premium Account” holder by paying the monthly or annual fee displayed to you when signing up for the Premium Account. Your Premium Account shall renew automatically and your credit card charged again at the end of the month or year (as applicable). To avoid the charges recurring, you should cancel your Premium Account by contacting us prior to the anniversary of the purchase of your Premium Account, or cancelling your account from within the Application. If you have paid for an annual Premium Account and you cancel, you shall be refunded the proportionate amount of what you paid representing the unused full months left in your Premium Account.

c. Account Termination

FoodHero reserves the right to terminate your account, at its sole discretion, at any time and for any reason, including but not limited to whether you have violated the letter or spirit of the TOU. For more details regarding the legal effects of account termination, please refer to section 13 of these TOU.

9. Description and Use of the Services, Payments and Other Charges

a. The Services, Products and Ordering

If you allow FoodHero to know your location using location services, the Application will display Stores within the local vicinity. You can also browse a list of Stores to view available Products. You can then select Products and choose “buy”, “reserve”, “place order” or similar. It is your responsibility to verify the Store location before placing an order. Once an order is placed, processing begins immediately and orders cannot be changed, except as provided for in this section of the TOU.

FoodHero does not in any way manufacture, purchase, store, prepare, produce, process, mark, pack, deliver or handle the Products, which are the sole responsibility of the Stores, and FoodHero disclaims any liability thereto.

You can find information about and descriptions of the Products in the Application. Product descriptions in the Application are provided by the Stores and are intended for informational purposes only, and intended to give you the most up to date information possible before making a purchase. It is the responsibility of the Stores to provide, maintain and update this information. If you are concerned about allergy information, it is your responsibility to communicate directly with the Store.

When placing an order for Products, you acknowledge and agree that: (1) you are at least 16 years old and have a valid debit, credit or other payment available for payment of Products; and (2) you have reviewed these TOU thoroughly before placing an order through the Services.

Once you place your order for Products and make your payment (as described below), you will receive a receipt via the Application (the “Order Confirmation”). At this point, the agreement is finalized. Your Products are reserved by the Store once you have completed the payment for Products and received your Order Confirmation.

b. Stores and Related Disclaimers

Notwithstanding that FoodHero facilitates and is the party to the transaction, the ultimate legal agreement when purchasing Products is made between you and the Store. Although FoodHero works hard to partner with reputable businesses, we ultimately have no control over the actions or inactions of any Store.

FoodHero and its Representatives shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any failure to perform, or any delay in performance, of any obligations of the Store, whether related to the agreement between you and the Store or otherwise. This disclaimer and limitation of liability applies equally with respect to the descriptions of Products submitted by the Stores, or not updated by the Store.

c. Order Confirmation and Pick-up

Once you place an order, you will receive the Order Confirmation in the Application and via email. The Order Confirmation will provide order details including your name, address, payment information, Products ordered, price, terms of payment, pickup time and location as well link to these TOU accepted by you. An Order Confirmation means the order has been accepted by the Store, subject to Store cancellation as indicated further below in these TOU.

You are responsible for picking up your Products at the stated pick-up address. You will typically have a pick-up window of 30-60 minutes, or as otherwise stated by the Store. You will find details of when and where to pick up your Products in the Application as well as in your Order Confirmation. You are asked to respect the pick-up times. If you arrive early, please use the “I’m here!” button in the Application to notify the Store you arrived, unless you intend to shop within the Store. If you arrive late, the Store may be closed. The Store also reserves the right to sell the Products to another party, without any liability to you, should you not pick up your order on time. In this instance, FoodHero is also entitled to charge the Purchase Price to you. Please respect the Store, its staff and other Heroes. Unacceptable or abusive behaviour may result in being banned from both the Store and the suspension or cancellation of your account.

To ensure you receive the Products you ordered, you will be required to show the Order Confirmation in the Application at the time of pick up. The Store staff will examine and electronically scan the Order Confirmation and present the Products to you. As the Hero, it is your responsibility to ensure you are able to show your Order Confirmation, and to ensure the type and quantity of Products received is correct.

d. Payments, Payment Processing and Other Charges

Once you place an order through the Application, you shall pay the total order amount for the Products selected (the “Purchase Price”) immediately in order to reserve the Products.

Should your payment method be rejected, it is your responsibility to verify that the information entered is correct and valid. Depending on the circumstances, FoodHero may receive an error code when a credit or debit card is rejected, which may indicate the reason for the rejection. In this instance, FoodHero may notify you within the Application of the reason, in order for you to correct the error. If no reason is given, or if the reason is corrected by you and the card or payment method is still rejected, FoodHero recommends you contact your bank or credit card issuer to rectify the error. FoodHero shall not be liable for any failure on the part of your bank or credit card issuer.

In accordance with standard banking procedures, once you place an order using a debit or credit card as the payment method, your bank or credit card issuer reserves the full Purchase Price of the order at the moment you are placing the order. If the order is rejected or cancelled by the Store, the bank or credit card issuer will release the relevant amount back into your available balance. This process may take up to 10 working days or longer, depending on the bank or credit card issuer. FoodHero has no authority to intervene or make inquiries. It is your responsibility to communicate with your bank or credit card issuer if you have questions or concerns.

Payments made through the Services, whether for Products or a Premium Account, are handled through the online payment processor Stripe. Stripe currently accepts certain credit and debit cards (which shall be displayed to you upon making your payment) as payment options, but these are subject to change without notice. Once transactions are accepted by Stripe, they are processed in accordance with Stripe’s program rules and procedures and Terms of Use. FoodHero and Stripe are unaffiliated companies and FoodHero has no influence on the operations of Stripe. FoodHero and its Representatives shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any error or failure on the part of Stripe.

Where you are using the Services on a Device, you shall be responsible for any data charges incurred from your wireless carrier or other data provider while using the Application.  

e. Pricing and Taxes

Prices displayed through the Services are firm and in Canadian dollars, which may be converted to other currencies at the time of payment processing, depending on your country of origin and / or credit card account agreement. Prices do not include applicable sales taxes, which shall be displayed during the checkout process, depending on your location.

f. Credit Card Information

In order to make a purchase through the Services, you will be required to enter the credit card holder name, credit card number, credit card expiry date, card security code (CVV), and billing address if different from your account address. This may be referred to in these TOU or the Privacy Policy as “Billing Information”.

FoodHero will ask your permission to save your Billing Information for the ease of future purchases. In this instance, FoodHero only saves the payment token and not full Billing Information, which is never available to FoodHero.  This is an optional step and you can always delete Billing Information from the Services at any time.

g. Cancellation of Orders

The mission of FoodHero is to reduce food waste and ensure food is used and not discarded. Products ordered through FoodHero are perishable goods. This is the basis for this strict cancellation policy.

You may cancel an order up to three hours prior to the scheduled pick-up time. You may not cancel an order less than three hours prior to the pick-up time, or any time after the pick-up time.

Cancellation requests must be communicated to FoodHero either within the Application, or via the email address associated with your account. If the communication and time frame conditions are met, the order will be cancelled and FoodHero will refund the reserved Purchase Price.

If the three-hour time frame is not met, or you attempt to communicate the request via a different communication method (for example, from an email address not associated with your email account or by leaving a voicemail), you will not be entitled to cancel the order or receive a refund.

Due to the nature and concept of FoodHero, and the perishable nature of the Products, either the Store or FoodHero may cancel an order up until two hours prior to the pick-up time. Furthermore, the Store may cancel the order for reasons beyond FoodHero’s control. In this instance, you will be notified via email and/or SMS by either FoodHero or the Store, provided the contact information supplied by the Hero is up to date and correct. In the case of such a cancellation, you will receive a refund of the Purchase Price.

FoodHero and its Representatives shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any cancellation by the Store in this manner.

h. Refunds and Failure to Pick-up Your Products

All purchases of Products are non-refundable, except as provided for in the previous section of these TOU with respect to order cancellations.

If you do not pick up your products within the period specified in your Order Confirmation, you shall forfeit the Products and shall not be entitled to a refund.

i. Complaints

You are advised to always verify prices, Product quantities, pick up location and time, and all other details before placing an order, as well as to verify the Products received at pick up are correct and consistent with your order details.

In the case of a complaint, please contact FoodHero via email at [email protected] and include your order number, information about the Products and the reason for your complaint. FoodHero will process complaints in cooperation with the relevant Store. You will receive a response from FoodHero within 10 business days of communicating the complaint, and we will always endeavour to resolve the issue to your satisfaction.

j. Behaviour of Heroes – Code of Conduct

Heroes should be kind at all times!

You shall not defame, stalk, bully, abuse, harass, insult, abuse, threaten, impersonate or intimidate people or entities, whether toward any employee of FoodHero or any Store, or any other Hero. You shall not commit a crime against FoodHero, any Store, or any other Hero.

FoodHero may cancel or suspend your account or otherwise terminate your access to the Services at any time and at our own discretion should you violate this code of conduct.

k. Non-profits Organizations and Free Products

If you represent a non-profit organization, you may be eligible to receive free Products form Stores, as described in the Application and subject to FoodHero’s discretion and determination of your status as a non-profit. FoodHero and its Representatives shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from the use of the free Products, any Store’s failure to complete the order for free Products, or our refusal to confirm your non-profit status.

l. Inviting Friends

The Application allows you to invite friends to use the Application if you are a Logged-in User. You will have access to a unique code (the “Referral Code”) that allows you to refer a friend to FoodHero, and earn credits, as described in this section of the TOU. You shall only share your Referral Code through the Application, which enables the sharing of the Referral Code via email and SMS messages. You shall only share the Referral Code with individuals with whom you are personally acquainted, and shall not use spam or any other automated means to share your Referral Code.

FoodHero shall use technological means to track any new user that signs up for a FoodHero account using your Referral Code (the “Referee”). In order for you to be eligible for the Reward (as defined below), the Referee must create a valid FoodHero Account. Upon creation of the account by the Referee, each of you and the Referee shall have credits in the amount of $5.00 (five dollars in Canadian currency) applied to your account for use on the future purchase of Products (the “Reward”). The Reward is subject to change without notice, at FoodHero’s sole discretion, in which case this sub-section of the TOU shall be modified. The Reward shall be credited to both your account and the Referee’s account within 48 hours of FoodHero’s confirming the validity of the Referee’s account.

10. User Content Policy, and Related Copyright and Intellectual Property Rights

As a Logged-in User, you may use the Services to create, submit, and / or upload certain content including but not limited to reviews of Stores, which may include text, photographs, written posts and comments, information, audio or video clips, and graphics. All of the foregoing shall be deemed “User Content”. By creating, submitting and / or uploading User Content through and to the Services, you agree to be bound by the FoodHero policy for User Content as described in this section (the “User Content Policy”).

When you submit User Content, you acknowledge and agree to the following:

  1. User Content submitted by you does not violate any intellectual property right or other proprietary right of a third party. Without limiting the generality of the foregoing, you acknowledge that any written text, photographs, or audio or video clips submitted are your own original works, or works for which you have been granted a valid license to reproduce or display. You affirm, represent and warrant that: (1) you own or have the necessary licenses, rights, consents, and permissions to use and authorize FoodHero to use all intellectual property rights and other proprietary rights in and to the User Content (or the individual constituent elements thereof) as set out herein; and (2) have all necessary consents to collect, use and disclose any personally identifiable information, images, or sounds (of yourself or third parties) contained or displayed in the User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and these TOU;
  2. You retain all of your ownership rights in the User Content you submit. However, by submitting User Content to FoodHero, you hereby grant FoodHero a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, edit, translate, reproduce, distribute, display, and / or perform and otherwise fully exploit the User Content in connection with the Website and Services and / or FoodHero 's (and its successors' and affiliates') business or activities, including without limitation for promoting and redistributing part or all of the Website or Services (and derivative works thereof) in any media formats and through any media channels without any compensation to you. You understand and agree that FoodHero may retain, but not display or distribute, server copies of User Content that have been removed or deleted;
  3. You also hereby waive any moral rights you may have in your User Content and grant other visitors or Users of the Website or Services a non-exclusive license to access your User Content, and to use, reproduce, distribute, display and / or perform such User Content as permitted through the functionality of the Services and under these TOU;
  4. The licenses granted by you in the previous two paragraphs in regards the User Content are perpetual and irrevocable, and apply throughout the world and in any and all media as applicable;
  5. You will not upload any User Content that is unlawful, such as User Content that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, or otherwise tortuous. Furthermore, you will not upload any User Content that is racist, sexist, homophobic, or otherwise offensive to any minority or group; contains any adult content or political militancy; or upload any User Content that contains any viruses, commercial solicitation, mass mailing, chain mailing or any other form of spam;
  6. You will not misrepresent your affiliation with another person, or impersonate another person or legal entity, or give the impression or insinuation your User Content originates from FoodHero;
  7. You will not include in User Content links to any third-party website that is a spam or phishing website, to any website that sells goods or services, or to any website that may violate any applicable law.

Where you are accessing or downloading User Content of a Logged-in User, you acknowledge that any use of User Content accessed or downloaded by you while using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any third party arising therefrom, and FoodHero disclaims any responsibility in this regard.

If you as a Website visitor or Services user believe that a Logged-in User has posted User Content that violates this User Content Policy, please contact us so that we may conduct an inquiry. FoodHero retains absolute discretion whether to remove or modify any User Content or take any other action pursuant to your report.

User Content is not edited, curated or otherwise modified or checked by FoodHero prior to posting. However, FoodHero reserves the right, in its sole discretion, to remove or modify immediately and without notice any User Content that violates the User Content Policy.

Please note that the User Content posted on the Services or Website does not constitute advice or endorsement from FoodHero and are intended for informational purposes only. User Content is created by Heroes and reflect their views and experiences with using or ordering through the Services or other third parties. Any statements, advice, opinions or tips included in User Content are those of the Hero only.

FoodHero, its affiliates and their respective Representatives will not be held liable for any damages, pecuniary or otherwise, to you or any third party arising from your submission or use of User Content, whether it violates the User Content Policy or not, or our removal or modification thereof, and disclaims any responsibility in this regard. To the fullest extent permitted by law, FoodHero assumes no liability or responsibility to any person with respect to any User Content including, but not limited to, defamation, errors, obscenity, falsehoods or omissions that may be encountered within any User Content.

11. Proprietary Rights

a. Intellectual Property Rights

You acknowledge that: (i) the Services, Application and Website contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and (ii) FoodHero and/or third parties own all right, title and interest in and to the Services, Application and Website and content that may be presented or accessed through the Application and Website, including without limitation all Intellectual Property Rights therein and thereto. All rights not specifically granted under these TOU are reserved to FoodHero and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, whether registered or not.

You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Services, or content that may be presented or accessed through the Services for any purpose, unless otherwise permitted by these TOU; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in or Services; or (iii) remove, obscure, or alter FoodHero’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services.

The content, arrangement and layout of the Website and Application (excluding User Content as defined in the previous section of these TOU), including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and Computer Code are proprietary to FoodHero, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of FoodHero, or as permitted by the functionality of the Services or these TOU, or as permitted by this section. Any unauthorized use of the content, arrangement or layout of the Website or Application, Computer Code, images, logos, videos, audio or trademarks found in the Website or Application or any portion of or derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and FoodHero may take action accordingly.

The above paragraph further applies to third party property used as part of the Services, including but not limited to third party Computer Code. For the purposes of the present section, “Computer Code” includes but is not limited to source code in any programming language, object code, code in markup languages such as HTML or XML, frameworks, CSS, PHP, JavaScript or similar files, templates, modules, or any similar files, and related documentation.

FoodHero hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to print and download extracts from the Services for your personal, non-commercial use, subject to the intellectual property conditions of this section, and the following further restrictions:

b. Submitted Information

If you choose to communicate to FoodHero (via any means) suggestions for improvements to the Website, Application, Services or FoodHero and / or its businesses generally (collectively, “Feedback”), FoodHero shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to FoodHero and waive in favor of FoodHero, its successors and assigns all your moral rights in the Feedback, and agree to provide FoodHero such assistance as FoodHero may require to document, perfect, and maintain FoodHero’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to FoodHero, you are not entitled to any compensation or reimbursement of any kind from FoodHero under any circumstances.

c. Trademarks

Apple and iOS are registered trademarks of Apple Inc. Android and Google Maps are registered trademarks of Google Inc.

12. Interruption of Service

From time to time, the Services may be unavailable for brief periods of time for maintenance and / or modifications to the Services. While we will endeavour to make this unavailability as brief as possible, FoodHero and its Representatives shall not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Services, and disclaims any responsibility thereto.

13. Termination of the Services and the TOU

You agree that FoodHero, in its sole discretion, with or without cause, has the right (but not the obligation) to block your IP address, revoke your account credentials or otherwise terminate your access to or use of the Services (or any portion thereof), immediately and without notice, for any reason, including, without limitation, if FoodHero believes that you have acted inconsistently with the letter or spirit of the TOU including but not limited to the User Content Policy, or the Privacy Policy.

FoodHero may also, in its sole discretion and at any time, discontinue providing the Services, or any portion thereof, with or without notice. You agree that FoodHero shall not be liable to you or any third party for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from termination of your access to the Services, or from FoodHero’s termination of the Services, or any portion thereof.

You may also choose to terminate your access to the Services by cancelling your account.  If you wish to cancel your account, please contact us at [email protected] or follow the instructions inside the Application when you are a Logged-in User.

Termination of the Services or your access to the Services shall terminate the present TOU as between you and FoodHero. All provisions of these TOU which by their very nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.

14. External Links and Applications

a. General External Links and Services

From time to time FoodHero may provide links to other websites or services. Links from the Website or Application may take you to websites or services not covered by these TOU. When you access third-party resources on the Internet in this manner, you do so at your own risk. FoodHero provides those links as a convenience to you and FoodHero takes no responsibility for your use of those other websites or services or protection of your privacy (including collection of your personal information) on those other websites or services. We encourage you to check the Terms of Use and / or Privacy Policy of any website or service you visit. FoodHero does not make any claim or warranty whatsoever about the content of those websites or services to which we link, or any products or services available through those websites or the third parties operating those websites.

In no way will FoodHero or its Representatives be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or Application or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.

b. Use of Google Maps

The Services make use of the Google Maps Platform, and when you use the Application the Google Maps Application may be opened from a link within the Application. Your use of Google Maps is subject to the current Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html and Google Privacy Policy at https://policies.google.com/privacy, which we encourage you to read.

15. Disclaimer of Warranties

You expressly understand and agree that your use of the Services (including but not limited to purchasing Products from Stores), the information thereon (whether provided by FoodHero or third parties) or any activity arising from your use of the Services (including but not limited to the purchase or use of Products) or the information thereon or the materials downloaded therefrom is at your sole risk. The Services, any materials downloaded therefrom, or any third party materials, are provided on an "as is" and "as available" basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Services (including but not limited to User Content) or any other functionalities of the Services, or losses or damages (financial or otherwise) resulting from (i) your use of the Services (including but not limited to purchasing Products from Stores), the information thereon, any materials downloaded therefrom (including but not limited to User Content), or (ii) any activity arising from the use of the Services (including but not limited to purchasing and using Products from Stores), the information thereon or any materials downloaded therefrom (including but not limited to User Content).

The information or resources provided through the Services, written or produced by FoodHero staff, freelance writers or other subcontractors are known to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Website or Services is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and FoodHero shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or through the Services.

FoodHero expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Services, the information thereon or any materials downloaded therefrom (including but not limited to User Content), and any third-party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. FoodHero, and its Representatives do not warrant that: (i) the Website or Services will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content or software available at or through the Website or Services (including but not limited to User Content) is free of viruses or other harmful components; or (iv) the results of using the Website or Services (including but not limited to any Products purchased or received) or any content downloaded therefrom (including but not limited to User Content) will meet your requirements.

16. Limitation of Liability

FoodHero shall not be liable and assumes no responsibility for any loss or damages (whether financial or otherwise) arising from or in relating to the information on the Services or downloaded therefrom (including but not limited to User Content), the use of the Services (including but not limited to purchasing Products from Stores), activities arising from your use of the Services (including but not limited to the purchase or use of Products), or any third-party materials on the Website or available through the Services (including but not limited to User Content).

To the maximum extent permitted by law, in no event will FoodHero or its Representatives be liable for any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages (including, without limitation, loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other pecuniary loss), arising out of or relating to the Services or your use, misuse or inability to use the Services, even if FoodHero has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action, whether in whether in contract, warranty, tort, negligence, strict liability or under any other legal theory.

Notwithstanding anything to the contrary in the TOU, where permitted by law in no event will FoodHero’s aggregate liability for any claims in connection with your use of the Services exceed the lesser of: (i) CAD$ 100; or (ii) the total of all Purchase Prices paid by you in the previous 6 months.

17. Indemnity

Notwithstanding any other term of the TOU or any act or failure to act by FoodHero or its agents or subcontractors, you agree to indemnify, defend and hold harmless FoodHero and its Representatives, or its affiliates and their Representatives, from and against any damages, liabilities, costs and expenses (including attorneys’ fees), claims or demands, arising out of (i) your use of or connection to the Services or the information thereon or information downloaded therefrom (including but not limited to User Content); (ii) your participation in any activities arising from the Services (including but not limited to the purchase or use of Products) or the information thereon or information downloaded therefrom (including but not limited to User Content); (iii) your violation of, or failure to perform your obligations under the TOU or the Privacy Policy; or (iv) your violation of any rights of a third party.

18. Governing Laws and Jurisdiction

These TOU, and your use of the Website or Services shall be governed by and construed in accordance with the laws of the Province of Quebec in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and FoodHero shall be brought exclusively in the courts located in the Judicial District of Montreal, Quebec, Canada. Notwithstanding the foregoing, FoodHero shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Montreal court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce in your jurisdiction a judgment obtained against you in the Montreal court.

19. Miscellaneous Provisions

  1. The TOU and any other terms linked therefrom, in conjunction with the Privacy Policy, constitute the entire agreement between you and FoodHero with respect to your use of the Website and Services, superseding any prior agreements between you and FoodHero, its predecessors, affiliates or subsidiaries. When you download the Application, you are also subject to the Terms of Service and Privacy Policy of any Third-Party Application Distributor you used to download the Application. We strongly suggest reading those documents prior to installing the Application. FoodHero shall in no way be held responsible for any losses or damages, whether pecuniary or otherwise, to you or any third party for your failure to adhere to the Terms of Service and / or Privacy Policy of any Third-Party Application Distributor when downloading and / or using the Application. If you choose to bypass the Third-Party Application Distributor and download the Application, you have violated these TOU and are barred from using the Application. Without limiting the generality of Disclaimers and Limitation of Liability sections elsewhere in these TOU, in no way shall FoodHero and its Representatives be responsible for your use of the Services or any actions or damages (pecuniary or otherwise) arising from your use of the Services if you have bypassed the Third-Party Application Distributor.
  2. FoodHero shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond FoodHero’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
  3. If any provision of the TOU or Privacy Policy is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU or Privacy Policy, as the case may be, shall remain in full force and effect.
  4. The rights granted in these TOU may not be assigned or transferred by either you or FoodHero without the prior written approval of the other party. Where a third party uses the Application installed on your Device with your permission, you are legally responsible for that third party's use and are bound by these TOU. Neither you nor FoodHero are permitted to delegate their responsibilities or obligations under these TOU without the prior written approval of the other party.
  5. The information provided on the Website or within the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject FoodHero to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Services or any portion of the Services, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, Services or other feature that FoodHero provides.
  6. The failure of FoodHero to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to FoodHero.
  7. The section titles in the TOU and Privacy Policy are for convenience only and have no legal or contractual effect.
  8. The parties acknowledge having expressly required that these TOU and the Privacy Policy are to be drawn up in the English language. Les parties aux présentes reconnaissent avoir expressément exigé que les présentes Conditions d’utilisation et la Politique de confidentialité soient rédigées en anglais.

© FoodHero Market Inc. 2018