Terms of Use

TERMS OF USE

Effective Date: March 19, 2021

Welcome to Black and Mobile! Black and Mobile, LLC ("BAM", "we" or "us") owns and operates the website https://www.blackandmobile.com/ and the Black and Mobile mobile application (collectively, the "Platform") and all related services (collectively, the "Services"). These Terms of Use are a legally binding agreement between you ("you") and us concerning your access to and use of the Platform and the Services. You agree that by using the Platform, you have read, understood, and agreed to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, THEN YOU ARE PROHIBITED FROM USING THE PLATFORM AND YOU MUST IMMEDIATELY DISCONTINUE USE OF THE PLATFORM.

YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS OF USE LIMIT OUR LIABILITY AND THAT YOU ARE RELEASING US FROM VARIOUS CLAIMS. THESE TERMS OF USE ALSO CONTAIN A WAIVER OF CLASS ACTION RELIEF AND A BINDING ARBITRATION PROVISION THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE PLATFORM AND THE SERVICES.

BACKGROUND

The Platform is a virtual marketplace that connects diners with third-party service providers, including restaurants and independent delivery service providers. You may order food through the Platform to be delivered from particular restaurants, including their authorized licensees and franchisees, or other purveyors of food in cities where we provide such Services ("Restaurants").

BAM is not a restaurant or food preparation business, and Restaurants on the Platform operate independently of us. Restaurants are required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale and marketing of food, including, without limitation, food preparation and safety and menu disclosures. We are not liable or responsible for Restaurants' food preparation or safety, and we do not verify Restaurants' compliance with laws. Furthermore, we do not guarantee the quality of what Restaurants sell, nor do we guarantee the services provided by Restaurants, including, without limitation, in those cases where they provide the delivery services or engage another third-party delivery service. We do not independently verify, and are not liable for, representations made by Restaurants regarding their food or any other matter, including, without limitation, any descriptions, disclosures, photographs or images displayed on the Platform showing food offered by Restaurants and/or delivered by Drivers (as defined below).

We are not a delivery company or a common carrier. Some deliveries are provided by our network of independent delivery service providers ("Drivers"). Drivers have entered into agreements with us, which require them to comply with all applicable federal, state, and local laws, rules and regulations. By accessing the Platform, you agree and acknowledge that Drivers are solely responsible for, and we are not liable or responsible for, the delivery services provided to you by any Drivers or any subcontractors of Drivers, or any acts, omissions, errors or misrepresentations made by any Drivers.

USING BLACK AND MOBILE

You may only create and hold one account on the Platforms (each, an "Account") for your personal use. In consideration of the use of the Platform and the Services, you agree that you are able to create a binding legal obligation with us, and you also agree to: (a) provide true, accurate, current and complete information about yourself, and (b) maintain and promptly update the personal information you provide to us to keep it true, accurate, current and complete at all times.

If you are a minor in the jurisdiction in which you reside, you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Platform, and your parent or legal guardian must read and agree to these Terms of Use prior to your using the Platform. Notwithstanding the foregoing, you are not authorized to use the Platform or otherwise access the Services if you are under the age of 13. If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if we suspect that any information you provide is untrue, inaccurate, not current or incomplete, we have the right, but not the obligation, to block your use of the Platform and/or the Services (or any portion thereof) and/or terminate these Terms of Use with you at any time, with or without notice. If your Account is terminated for any or no reason, you may forfeit any forms of unredeemed value in or associated with your Account (e.g., pending, current or future account credits or other promotional offers) without prior notice to you.

You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, any password for any third party login (e.g., Google, Facebook). You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify us of any known or suspected unauthorized use of your password or Account, or any known or suspected breach of security relating to your Account, including, without limitation, the loss, theft or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. We will not be liable for any injury, loss, or damage of any kind whatsoever arising from or relating to your failure to comply with these Terms of Use or for any acts or omissions by you or someone else who is using your Account and/or password.

PAYMENT; REFUNDS

Certain features of the Platform, including, without limitation, the placing or receipt of orders, may require you to make certain payments. When paid by you, these payments are final and non-refundable, unless otherwise determined by us in accordance with our Refund Policy, which is incorporated into these Terms of Use by this reference.

We will charge, and you authorize us to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, we may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase.

BAM reserves the right to set, revise and/or remove prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the Services at any time, and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for restaurant food and beverage items. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower than the total amount due. Regardless of the cause, we reserve the right to charge the final price after checkout, including without limitation all applicable transaction taxes. We may also, in our sole discretion, make promotional offers with different features and different rates available to any or all of our users at any time. Unless made available to you, such promotional offers will have no bearing on your obligation to pay the amounts charged.

The provider of Services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

OUR MATERIALS

With the exception of Your Content (as defined below), the Platform and everything on it, including, without limitation, text, photos, videos, graphics and software, (collectively, the "Materials") is owned by or licensed to us. The Platform and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the Platform and except for the intellectual property of other companies that are displayed on the Platform, all intellectual property in the Materials, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to BAM. Accordingly, you are not authorized to download any content from the Platform, including, without limitation, the Materials, and if you do, we will not be responsible in any way for any damage to your computer, device or systems or loss of data resulting from any such download.

Subject to your compliance with these Terms of Use, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Platform for your personal and noncommercial use, solely as expressly permitted by these Terms of Use and subject to all of the terms and conditions of these Terms of Use, all applicable laws, and any Additional Terms (as defined below). Any other use of the Platform is strictly prohibited. Nothing contained on the Platform and/or in the Materials should be interpreted as granting you any license or right to use any of the Materials (other than as provided herein) and/or third-party proprietary content on the Platform without our express written permission or the express written permission the relevant third-party owner, as applicable. Any rights not expressly granted herein are reserved by us and our licensors.

PROHIBITED ACTIVITIES

By accessing the Platform or the Services, you agree to comply with these Terms of Use and all applicable laws, rules and regulations in connection with your use of the Platform and Services. Furthermore, you agree not to do or attempt to do any of the following:

  • use the Platform or Services for any commercial or other purposes that are not expressly permitted by these Terms of Use;
  • use the Platform or Services in any manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
  • access the Platform or Services using an account that is not your own without the express consent of the Account holder;
  • impersonate another user or person;
  • avoid, bypass, remove, deactivate, impair, descramble or attempt, through any means, to circumvent any technological measure implemented by us to protect the Platform, or otherwise gain unauthorized access to any part of the Platform or Services, other Account, computer system, and/or network connected to any BAM server;
  • use the Platform or Services in any manner that could damage, disable, overburden and/or impair the Platform, any BAM server or the network(s) connected to any BAM server;
  • use the Platform or Services in any manner that could interfere with any other party's use and enjoyment of the Platform;
  • advertise to or solicit any user, Restaurant, Driver or other party to buy or sell any products or services, or use any information obtained from the Platform or the Services in order to contact, solicit or advertise or sell to any user, Restaurant, Driver or other party unless specifically authorized in writing by us;
  • deep-link to, frame or access the Platform manually or with any robot, spider, web crawler, extraction software, automated process or device or other means to scrape, copy, or monitor any portion of the Platform unless specifically authorized in writing by us;
  • create or compile, directly or indirectly, any collection, compilation, database or directory from the Platform or Materials;
  • create Restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not comport with the purpose or spirit of the Platform;
  • copy, publish or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive or promotional offers;
  • harass, annoy, intimidate or threaten any of our employees, contractors, or agents engaged in providing any portion of the Services or engage in any other behavior that we deem inappropriate when using the Platform or Services;
  • engage in any criminal or tortious activity, including, without limitation, fraud, spamming, sending of viruses or other harmful files, copyright infringement, patent infringement or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any of the Materials or from any portion of the Platform or the Services;
  • rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble or otherwise reduce the Platform and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the Platform and its Services; and
  • disrupt, interfere with or otherwise harm or violate the security of the Platform or any Services, system resources, accounts, passwords, servers or networks connected to or accessible through the Platform or affiliated or linked sites (including, without limitation, those of any Restaurant).

In the event that we suspect that you engaged in, or attempted to engage in, directly or indirectly, any of the prohibited conduct described above, we reserve the right, but do not have any obligation, to suspend and/or permanently terminate your Account at our sole discretion.

YOUR CONTENT

We may provide you with interactive opportunities (a) on the Platform, including, without limitation, features such as user ratings and reviews, saved favorites, liked items and bookmarked Restaurants, user profiles and pictures, (b) on social media pages maintained by us, or (c) through other communications with you, including, without limitation, through text ("SMS") or multimedia ("MMS") messages. You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish and/or otherwise make available to us through the Platform or otherwise in connection with your use of our Services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google or other third party login ("Your Content"). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a BAM user, textual, visual or audio content and information, whether transmitted via the Platform, SMS or MMS message, or otherwise.

You hereby grant us an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute and/or otherwise use Your Content in connection with our or our partners' or affiliates' business and in all forms of media now known or hereafter developed. Such uses include, without limitation, use of your username and/or other user profile information such as your ratings history and how long you have been a BAM user, to attribute Your Content to you on the Platform, including in public areas on our Platform, or otherwise in connection with our Services. All such uses will be made without further notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Furthermore, you hereby grant us a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to incorporate and use any of your suggestions, input or other feedback relating to the Platform or the Services for any purpose without notice to, approval by, or compensation to you.

You understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children or otherwise unsuited to your purpose. We and our affiliates, and each of their respective officers, directors, members, managers, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the "Released Parties") will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for the action of any and all third parties with respect to Your Content, or for any damages you allege to incur as a result of or relating to any third-party content.

By introducing Your Content into the Platform, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Platform from time to time. You are responsible for all of Your Content. You agree that Your Content will not, as determined by us:

  • be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, discriminatory, racist or otherwise objectionable;
  • have a commercial, political or religious purpose;
  • be false or misleading;
  • infringe any patent, trademark, trade secret, copyright, right of privacy or publicity or other proprietary right of any third party;
  • be illegal or promote or glamorize illegal activity;
  • contain unauthorized advertising or solicit users to a business other than those on the Platform; or
  • be intended to interrupt, corrupt, destroy or limit the functionality or integrity of any computer software, hardware on the Platform or other websites.

We may monitor any and all use of the Platform, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the Platform in a manner intended to protect our property and rights and to facilitate the proper functioning of the Platform. If any of Your Content or conduct on our Platform violates our standards, or any other terms of these Terms of Use, or interferes with others' use or enjoyment of the Materials or the Platform, we reserve the right, in our sole discretion and without notice to you, to (a) change, delete or remove, in part or in full, any of Your Content, (b) terminate or suspend access to all or any portion of the Platform, and/or (c) terminate or suspend your Account; in each case, with or without notice. We will cooperate with local, state and federal authorities to the extent required by applicable law in connection with Your Content.

The Platform may allow you to rate and/or post reviews of Restaurants. Such ratings and reviews (collectively, "Ratings") are considered Your Content and are governed by these Terms of Use. Ratings are not endorsed by us, and do not represent our views or the views of any affiliate or partner of BAM. We do not assume liability for Ratings or for any claims, liabilities or losses resulting from any Ratings. Notwithstanding the foregoing, all Ratings must comply with the following criteria: (a) before posting a Rating, you must have had recent first-hand experience with the applicable Restaurant; (b) you may not have a proprietary or other affiliation with either the applicable Restaurant or any of its competitors; (c) you may not draw any legal conclusions regarding the applicable Restaurant's products, services or conduct; and (d) your review must otherwise comply with these Terms of Use as well as all applicable laws, rules, and regulations. Any Rating that we determine, in our sole discretion, could diminish the integrity of the Platform may be removed or excluded by us at any time with or without notice.

COMMUNICATIONS

When you use the Services, or send emails, text messages and other communications from your computer or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as emails, texts, mobile push notices or notices and messages through the Services, and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Your voluntary provision of your telephone number (whether a wireless number or otherwise) to us represents your consent that we may contact you by telephone, SMS or MMS messages at that phone number, and your consent to receiving such communications for transactional, operational or informational purposes. When you provide your telephone number to us, you warrant that you are the current subscriber or authorized user of the relevant account. You understand and agree that such messages may be sent using automated technology and/or pre-recorded messages. You may unsubscribe from receiving text messages from us at any time. To revoke your consent to receiving SMS or MMS messages from us, you agree to follow the unsubscribe procedures described below.

When placing orders through the Platform, you may receive order status messages from us about each order. To unsubscribe from order-related messages, just reply "STOP" to the number sending the message. To resubscribe, text "START" to the same number from the phone number associated with your account. If you need assistance, text "HELP". Additionally, you may receive messages from us following receipt of a completed order soliciting feedback and/or other information relating to the order. You may unsubscribe from all such feedback messages by replying "STOP" to the number sending the feedback messages. To resubscribe, text "START" to the number sending the feedback messages using the phone number associated with your account. Please note that unsubscribing from such feedback texts will not prevent you from receiving texts from us, the Restaurant, or your Driver regarding your order or its delivery unless you also text "STOP" to the number sending the order-related messages, and even in such event, you may still receive individual texts from the Restaurant or your Driver to enable successful delivery of your order. You may also receive text messages in response to your requests; to unsubscribe from such messages, just reply to the message by texting "STOP" to the number sending the message.

If you unsubscribe from receiving text messages from us through the process described above, you may continue to receive text messages for a short period while we process your request(s). If you change or deactivate the telephone number you provided to us, you have an affirmative obligation to immediately update your account information and the telephone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any telephone number(s) previously attributed to you, and any new telephone number(s) you attach to your account may receive our standard SMS or MMS messages unless you also unsubscribe via the above procedures.

Standard data and message rates may apply for SMS and MMS messages, whether you send or receive such messages. Please contact your mobile phone carrier for details.

ADDITIONAL TERMS FOR MOBILE APPLICATIONS

We may make available software to access the Platform via a mobile device (a "Mobile Application").

The following applies to any Mobile Application you acquire from the Apple App Store ("Apple-Sourced Software"): You acknowledge and agree that these Terms of Use are solely between you and BAM, not Apple, Inc. ("Apple") and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Use and any law applicable to us as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy or similar legislation; and all such claims are governed solely by these Terms of Use and any law applicable to us as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party's intellectual property rights, BAM, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You and BAM acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms of Use as it relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software.

The following applies to any Mobile Applications you acquire from the Google Play Store ("Google-Sourced Software"): (a) you acknowledge that these Terms of Use are solely between you and BAM, and not with Google, Inc. ("Google"); (b) your use of Google-Sourced Software must comply with Google's then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) BAM, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Use; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Use as it relates to BAM's Google-Sourced Software.

DISCLAIMER

THE PLATFORM, THE SERVICES, THE MATERIALS AND ALL OTHER CONTENT ON THE PLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED BY BAM IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, BAM DISCLAIMS, WITH RESPECT TO THE SERVICES, THE PLATFORM, THE MATERIALS AND ALL OTHER CONTENT ON THE PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BAM DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES, THE MATERIALS OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS OR OTHER CONTENT ON THE PLATFORM WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. BAM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS OR ANY OTHER CONTENT ON THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY OR TIMING OF A DELIVERY ORDERED ON THE PLATFORM OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT BAM) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION RELATING TO YOUR USE OF THE PLATFORM, THE SERVICES, THE MATERIALS OR OTHER CONTENT ON THE PLATFORM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.

BAM WILL NOT BE LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BAM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING, DIRECTLY OR INDIRECTLY, FROM SUCH CAUSES.

BAM RELIES UPON RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. BAM DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE PLATFORM OR THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION OR RATINGS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE PLATFORM OR THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BAM BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE OR OTHER ECONOMIC ADVANTAGE), EVEN IF BAM HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT OR ANY OTHER ACTION OF ANY TYPE THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE PLATFORM OR THE SERVICES PROVIDED ON OR THROUGH THE PLATFORM OR BY BAM.

BAM ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF OR DOWNLOADING OF ANY MATERIALS FROM THE PLATFORM. BAM ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES OR MATERIALS AVAILABLE ON OR THROUGH THE PLATFORM, AS WELL AS ANY THIRD-PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THE PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER OR INACCURACY CONTAINED THEREIN, OR HARM TO ANY PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

IN NO EVENT SHALL BAM'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, NEGLIGENCE, TORT OR ANY OTHER ACTION, OF ANY TYPE EXCEED THE LESSER OF (A) THE AMOUNT PAID BY YOU TO BAM OR A RESTAURANT, IF ANY, AND (B) $500. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY APPLICABLE LAW.

YOU AND BAM AGREE THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE MATERIAL, BARGAINED-FOR BASES OF THESE TERMS OF USE, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THESE TERMS OF USE AND IN THE DECISION BY EACH PARTY TO ENTER INTO THESE TERMS OF USE. YOU AND BAM AGREE THAT THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS OF USE ARE FAIR AND REASONABLE UNDER THE CIRCUMSTANCES. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM AND SERVICES, WHICH YOU MAY DO AT ANY TIME.

INDEMNIFICATION

You agree to defend, indemnify and hold harmless BAM, its affiliates, licensors and service providers, and its and their respective officers, directors, members, managers, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any actual or alleged claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including attorneys' fees) arising out of or relating to your violation of these Terms of Use.

THIRD PARTY SITES

The Platform may contain links to certain websites and applications that are owned, controlled, developed, sponsored or maintained by third parties and which may be subject to additional terms and conditions ("Third Party Sites"). BAM does not review, monitor, operate or control Third Party Sites and BAM makes no guarantees, representations or warranties as to, and shall have no liability for, the content available on or through or the functioning of any Third Party Sites. By providing access to Third Party Sites, BAM is not recommending or otherwise endorsing the products or services provided by the sponsors or owners of those Third Party Sites. Your access to and use of Third Party Sites, including, without limitation, providing information, materials or other content to Third Party Sites, is entirely voluntary and at your own risk. BAM reserves the right to discontinue links to any Third Party Site at any time and for any reason, without notice.

ADDITIONAL TERMS

Your use of the Platform is subject to any and all additional terms, policies, rules or guidelines applicable to the Services or the Platform that we may post or link to on the Platform ("Additional Terms"), such as end-user license agreements or other agreements or rules applicable to particular features, promotions or content on the Platform, including, without limitation, the Google Maps/Google Earth Additional Terms of Service located at https://maps.google.com/help/terms_maps.html and the Google Privacy Policy located at https://www.google.com/intl/ALL/policies/privacy/index.html. All Additional Terms are hereby incorporated into these Terms of Use by this reference.

RESTAURANT LOYALTY PROGRAMS

If you do register with a Restaurant's promotional or loyalty program, you understand that you may be required to agree to additional terms and conditions provided by the Restaurant. You also understand that you will need to contact the Restaurant separately if you have any questions regarding your participation in their promotional or loyalty program. BAM does not own, operate or otherwise control such separate Restaurant promotional or loyalty programs and therefore shall have no liability for those separate programs.

PRIVACY POLICY

We care about the privacy and security of your data. Please review our Privacy Policy carefully. By using the Platform, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use by this reference. Please be advised that the Platform is hosted in the United States. If you access the Platform from any other region of the world with laws or other requirements governing personal data collection, use or disclosure that differ from applicable laws in the United States, then through your continued use of the Platform, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.

COPYRIGHT POLICY

We respect the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent (as set forth below) with a written notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 ("DMCA"):

  • The physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
  • Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material (e.g., the specific URL);
  • Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
  • A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.

Please send this notification to our copyright agent at: Black and Mobile, LLC, Attention: Copyright Agent, 3675 Market Street, Suite 200, Philadelphia, PA 19104. Please note that the information provided in such a notice of copyright infringement may be forwarded to the user who posted the allegedly infringing content.

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.

Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to the Platform, the Services and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

TERMINATION AND VIOLATIONS OF THESE TERMS OF USE

Your rights under these Terms of Use will terminate automatically without notice if you fail to comply with any term of these Terms of Use. We reserve the right, in our sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the Platform and/or Services offered on or through the Platform (or any part thereof), including but not limited to the Platform's features, look and feel and functional elements and related Services. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform. You may terminate these Terms of Use at any time by closing your Account, uninstalling all mobile application(s) providing access to the Platform (if applicable) and ceasing use of the Platform and Services provided herein.

Upon termination of these Terms of Use for any reason or no reason: (a) your rights to access the Platform and the Services will terminate and you must immediately cease all use of the Platform and Services; and (b) any provision of these Terms of Use that contemplates or governs performance or observance subsequent to termination of these Terms of Use will survive the termination of these Terms of Use.

We reserve the right to seek all remedies available at law and in equity for violations of these Terms of Use, including, without limitation, the right to block access to the Platform and the Services from a particular account, device and/or IP address.

You may not assign or transfer these Terms of Use or your rights under these Terms of Use, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms of Use in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.

CHANGES TO THESE TERMS OF USE

We may change these Terms of Use from time to time and without prior notice to you. If we make a change to these Terms of Use, it will be effective as soon as we post it, and the most current version of these Terms of Use will always be posted under the "Terms of Use" link available on our Platform. You agree that you will review these Terms of Use periodically. By continuing to access or use the Platform or the Services after we post updated Terms of Use, you agree to be bound by the updated Terms of Use, and if you do not agree to the updated Terms of Use, you must stop using the Platform and the Services. The updated Terms of Use will govern any disputes between you and BAM, even if the dispute arises or involves facts dated before the "Effective Date" of the Updated Terms.

GOVERNING LAW

The offer and acceptance of these Terms of Use is deemed to have occurred in the Commonwealth of Pennsylvania. All matters relating to the Platform, the Services, these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction). Subject to the provisions regarding arbitration below, any legal suit, action or proceeding arising out of, or related to, the Platform, the Service or these Terms of Use shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Pennsylvania in each case located in Philadelphia County, Pennsylvania. Each party hereby waives any and all objections to the exercise of jurisdiction over it by such courts and to venue in such courts.

DISPUTE RESOLUTION

PLEASE READ THIS "DISPUTE RESOLUTION" SECTION CAREFULLY. IT LIMITS THE WAYS YOU CAN SEEK RELIEF FROM BAM AND REQUIRES YOU TO ARBITRATE DISPUTES ON AN INDIVIDUAL BASIS.

At BAM's sole discretion, BAM may require you to submit any disputes arising from the Platform, the Services or these Terms of Use, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Pennsylvania law and taking place in Philadelphia, Pennsylvania. Arbitration procedures are typically subject only to very limited review by a court. In the event any litigation should arise between US AND YOU in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, EACH PARTY hereby waiveS all rights to a jury trial, instead electing that the dispute be resolved by a judge. Notwithstanding the foregoing, BAM will have the right to seek injunctive or other equitable relief in any state or federal court located in Commonwealth of Pennsylvania to enforce these Terms of Use or prevent an infringement or violation of a third party's rights. In the event such equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such courts.

WAIVER OF CLASS OR CONSOLIDATED ACTIONS

BY ENTERING INTO THESE TERMS OF USE, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE PLATFORM, THE SERVICES OR THESE TERMS OF USE MUST BE ASSERTED INDIVIDUALLY.

WAIVER OF CLASS OR CONSOLIDATED ACTIONS

You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with the Platform, the Services or these Terms of Use, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.

WAIVER AND SEVERABILITY

Any waiver by BAM of any term of these Terms of Use must be in writing. Except as otherwise provided in these Terms of Use, if any portion of these Terms of Use is found to be void, invalid or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible. The remainder of these Terms of Use shall continue to be enforceable and valid according to the terms contained herein.

ENTIRE AGREEMENT

These Terms of Use, together with any amendments and any additional agreements you may enter into with BAM in connection with the Platform and the Services hereunder, shall constitute the entire agreement between you and BAM concerning the Platform and the Services hereunder.

CONTACT

The Platform is operated by Black and Mobile, LLC, 3675 Market Street, Suite 200, Philadelphia, PA 19104.

All feedback, comments and other communications relating to the Platform, the Services or these Terms of Use should be directed to us at the address above or at support@blackandmobile.com.