Non-Profit Terms and Condtion

Dishefs – Non-Profit Organization Terms and Conditions

 

This Agreement sets out the Terms and Conditions by which Dishefs LLC ("Dishefs," "we," "us," or "our") provides its services (the "Services," described below) to you ("Non-Profit," "you," or "your") through its website located at https://www.dishefs.com (the "site") and through its mobile applications and related services (the "Agreement").  

 

To simplify the language in this Agreement the term, "Merchant," refers to the individual who, or legal entity which operates or is a restaurant, grocery retailer, pharmacy/convenience store, farmers' market seller, restaurant chef, food truck chef, personal chef, caterer, or commercial kitchen operator.  The term, "Non-Profit," or "Customer," will refer to the entity or organization agreeing and accepting these Terms and Conditions in order to use the Dishefs App to coordinate and accept donations from Merchants.  Neither Non-Profit nor Merchant will in any way be considered an employee of Dishefs and will not be entitled to any of the benefits that Dishefs may make available to its employees, such as vacation pay, sick leave, and insurance programs, including group health insurance or retirement benefits; and will not be eligible to recover contributor's compensation benefits in the event of injury.

 

For purposes of this agreement, a Non-Profit organization is a legal entity that is organized and operated according to all laws and regulations governing not-for-profit organizations that support social or public causes which include provision of food, medicine, personal items (any of which may be referred to herein as "Items," or "Donated Items"), and other support to recipients who may be, but are not limited to, the needy, ill, and infants.  

 

Upon request, a Non-Profit organization using the Dishefs Services to accept donations of food and other Items will provide to Dishefs proof of its status as a recognized not-for-profit charitable organization.  A Non-Profit organization entering into this agreement with Dishefs and using the Dishefs Services acknowledges and agrees that it will maintain its status as a recognized charitable organization and at all times comply with any registration, reporting, or other compliance requirements.  Non-Profit organizations may include, but are not limited to, charitable organizations such as those that provide childcare, wellness, shelter, or counseling.  Non-Profits may include, but are not limited to, churches, synagogues, temples, or mosques.  For purposes of this Agreement, a Non-Profit Customer shall be considered a Merchant, as pertains to its use of the Dishefs App and Services.  

 

Collectively, the Services, including any new features and applications, and the site, are subject to the following terms of service, as amended from time to time (the "Terms of Service"). 

 

By accepting this Agreement, by (1) clicking a box indicating acceptance or (2) executing an order addendum that references these terms, or an addendum or addenda, Non-Profit agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms, in which case the term "Non-Profit" shall refer to such entity and its affiliates. 

 

The Non-Profit acknowledges that it fully understands and will comply with the regulations governing its operations in its specific state, municipality or locality, including such specific state, municipality or locality in which it operates its base or delivers Items or Services through any Channel (which may or may not be the same state, municipality, or locality in which it operates its base).  Non-Profit acknowledges that it accepts the responsibility to know, understand, follow, and comply with any government regulations governing the operation of the business for which it uses the Dishefs Application and/or the Services.  Be aware that compliance with applicable laws and regulations in your area may include inspection by government officials of your premises, facilities, and equipment, with or without prior notice.

 

Each Non-Profit should confer with its own legal advisor regarding laws and regulations in the state, municipality, or locality where it operates or provides Items or Services.  Dishefs is not liable, and will be held harmless for any consequences that may arise from Non-Profit's non-compliance with such applicable laws and regulations.  

 

Dishefs reserves the right to use secret shoppers to assess whether you and your facilities are in compliance with your responsibilities under your agreement(s) with Dishefs.  

 

If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.  Section 17 of this agreement contains provisions that govern how claims that the parties have against each other are resolved, including without limitation a mandatory arbitration provision.  Further, (1) you will only be permitted to pursue claims against Dishefs on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis, and (3) you may not be able to have any claims you have against us resolved by a jury or in a court of law.

 

1. GENERAL

 

These Dishefs Non-Profit Terms of Service are hereby accepted and agreed to by the company identified within the Dishefs sign-up process ("Non-Profit," "Customer," or "you"), and constitute a legally binding agreement by and between Non-Profit and Dishefs.  Upon acceptance of these Terms of Service, Non-Profit may request access to the Non-Profit Match-up Channel of the Dishefs App, as described in more detail herein ("Sales Channel").  Such requests shall indicate Non-Profit's acceptance of any applicable Match-Up Channel terms detailed below, and of the terms of any applicable addendum.  

 

These Terms of Service may be subject to and/or incorporate applicable Addenda.  These Terms of Service and any such Addendum, or Addenda are, collectively, the "Agreement" or "Terms of Use."  Non-Profit's access to and use of the Dishefs application and Dishefs Tools (as defined below) are subject to the Agreement and may be modified or updated by Dishefs from time to time, effective upon posting an updated version of these Terms of Service and/or an applicable Addendum on the Dishefs App or website. 

 

Merchant is responsible for updating contact information and regularly reviewing the Terms and any applicable Addendum for updates and information from Dishefs.  Continued use of the Dishefs Services after any such modifications or updates shall constitute Non-Profit's consent to such changes. 

 

Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings described to such terms in the applicable Addendum.

 

2. SERVICES

 

2.1 Items and Services

 

Note that Dishefs may not, at the time you enter into this agreement, offer all services, technology, features, functionality and/or options described in it.  Dishefs reserves the right to add or remove offered elements of its product at any time.  In such instances, Dishefs will offer as much advance notice as possible.  

 

In the Non-Profit Match-Up Marketplace, the Dishefs App is used to coordinate donations between Merchants who have surplus food or other Items to donate and Non-Profit organizations who can distribute it to those in need.  

 

You agree that Dishefs shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

 

2.2 Merchant Technology

 

To facilitate Non-Profit Match-Up transactions, using the Dishefs Services, Dishefs and its affiliates may make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Dishefs Services (collectively, the "Dishefs Tools"), which may include Dishefs' and its affiliates' proprietary technology platform referred to as Merchant Manager, through which insights and analytics regarding Merchant's performance and history using the Dishefs Services are provided, and Dishefs and its affiliates' proprietary technology platform referred to as Dishefs Merchant Dashboard, through which Merchant may, among other things, receive, accept and fulfill requests for Items or Services from Non-Profit.  

 

2.3 Non-Profit Technology

 

To facilitate Non-Profit Match-Up transactions, using the Dishefs Services, Dishefs and its affiliates may make available to Non-Profit a website, mobile application or other technology interface for Non-Profit to access and use the Dishefs Services (collectively, the "Dishefs Tools"), which may include Dishefs' and its affiliates' proprietary technology platform referred to as _______________, through which Non-Profits may view and request donations of Items available form Merchants, or may post requests for desired Items from Merchants.  

 

2.4 Dishefs App

 

Non-Profits who request or accept donations of Items through any Channel are "Non-Profit Customer(s)," and users who list, prepare and offer Items through the Service are "Merchant(s)." A user may be both a Customer and Merchant.  All transactions are made directly (and any contract for donations is) between the Non-Profit Customer and Merchant. 

 

Each Merchant is solely liable for the quality, safety, and freshness of its products, and Dishefs does not verify the credentials, representations, products, services or prices offered by any Merchants, and does not guarantee the quality of the products, or that Merchants or Items comply with applicable laws. Dishefs will not be liable or responsible for any Items provided by Merchants that are a cause of injury or that do not meet Non-Profit Customer's expectations in any manner.  

 

While typically, Non-Profit Customers will arrange for pickup of donated Items, Dishefs may enter into agreements with independent contractors (each a "Gofer") to provide delivery services under certain circumstances. If a Non-Profit chooses to use a Gofer to deliver a donation, Dishefs is not offering such delivery services and has no responsibility or liability for the actions or inactions of any Gofer. Dishefs will not be liable or responsible for any delivery services provided by a Gofer or any errors or misrepresentations made by them.  

 

Merchants may enter into agreements with 3rd Party Drivers such as PostMates, DoorDash, UberEats, or InstaCart (each a "3rd Party Driver") to provide delivery services under certain circumstances if desired by individual Merchants.  If a Merchant chooses to use a 3rd Party Driver to deliver a donation of Items, Dishefs is not offering such delivery services and has no responsibility or liability for the actions or inactions of any 3rd Party Drivers.  Dishefs will not be liable or responsible for any delivery services provided by a 3rd Party Driver or any errors or misrepresentations made by them.  As regards their use of the Dishefs App to perform delivery services, 3rd Party Drivers will be subject to the same Terms and Conditions as Gofers.  

 

Dishefs may enter into agreements with 3rd Party Drivers such as PostMates, DoorDash, UberEats, or InstaCart (each a "3rd Party Driver") to provide delivery services under certain circumstances.  If a Delivery being performed by a 3rd Party Driver to deliver a donation of Items, Dishefs is not offering such delivery services and has no responsibility or liability for the actions or inactions of any 3rd Party Drivers.  Dishefs will not be liable or responsible for any 3rd Party Driver errors or misrepresentations made by them.  

 

If you choose to register for Dishefs in order to access and use certain features of the Service, you agree to provide and maintain true, accurate, current and complete information about yourself and/or your organization as prompted by the Service's registration form.  Registration data and certain other information about you are governed by our Privacy Policy.  The Service is available only to organizations who form legally binding contracts under applicable law. Without limiting the foregoing, the Service is not available to minors (people under the age of majority in their state or province of residence) or to temporarily or permanently suspended users of the Service (both Customers and Merchants). If you do not qualify, please do not use the Service. Additionally, Dishefs reserves the right to refuse access to, or use of the Service to, anyone, and may terminate any account, at any time, in its sole discretion. You are only authorized to create and use one account for the Service and are prohibited from using lookalike or other disguised identities when using the Service.

 

While Dishefs appreciates and encourages Non-Profit Customers to recommend it to other organizations, or Merchants, a Non-Profit's recommendation or endorsement of Dishes will not result in any preferential treatment regarding donations.  All participants in the Non-Profit Match-Up channel in a particular area have the same access to lists of available donated Items and requests are managed on a first-come-first-served basis.  

 

2.5 Non-Profit Match-Up Channel

 

Merchant may request access to match-up services, which allow Merchants with surplus food or other Items to connect with Non-Profit organizations to accept donations.  

 

1. Using the Non-Profit Match-Up, Merchants who have surplus food or other Items can notify Non-Profit organizations who may be in need of such Items through the Non-Profit Match-Up Channel, whereby Merchant's surplus Items are presented on the Dishefs App to Non-Profit organizations.  In most instances, Non-Profit organizations will pick up the donations from donors.  If Non-Profits need assistance Dishefs can provide Gofers to provide delivery service.  In such a circumstance, Dishefs reserves the right, in its sole discretion, to from time to time use Alternate Gofers such as its own employees or third-party independent contractors outside the pool of Gofers.  

 

Conversely, non-profit organizations can use the Non-Profit Channel to identify Merchants who may have surplus Items available of which they are in need.  

 

By electing to use the Non-Profit Match-Up Channel, Non-Profit agrees to accept any applicable addenda.  

 

3. DISHEFS OBLIGATIONS

 

3.1 Dishefs Services

 

Subject to the terms and conditions of this Agreement, Dishefs and its affiliates will make available the applicable Dishefs Services to Non-Profit, solely for use by Merchant at locations that are owned and operated by Non-Profit (each, a "Location").  Non-Profit shall provide Dishefs current and accurate Location information throughout the Term of this Agreement.  For the avoidance of doubt, as between Non-Profit and Dishefs, Dishefs will retain sole and absolute control over the Dishefs App (and all elements of the user experience and user interface relating to the Dishefs App), including with respect to: (i) the personalization of the Dishefs App for Non-Profit; (ii) the prioritization and display of options available to Non-Profit; (iii) the search functionality and results provided to Non-Profit; and (iv) adding, removing or otherwise modifying any feature or functionality made available through the Dishefs App to optimize reliability or efficiency on the Dishefs App.

 

3.1.1 Match-Up Marketplace

 

The Services include a technology marketplace in which Merchants list and offer, or can seek out connections to Non-Profit Organizations in order to offer as donations surplus Items.  Users who use the Dishefs services to coordinate receipt of surplus Items are Non-Profit Customers and users who list, offer, and provide the donation of Items through this Service are Merchants.  However, for all other purposes regarding their use of this agreement and the Dishefs app, Non-Profit Customers are also considered Merchants.  All donations of items coordinated through Dishefs are to be received by and benefit the Non-Profit Customer's recipients who are classified as (but not limited to) needy, ill, and infants.  Under no circumstances are the donations of Items coordinated through Dishefs to be sold, bartered or exchanged.  Under no circumstances are the items donated by coordination through Dishefs to be given to volunteers or employees as payment for their service.  Under no circumstances will a Merchant require monetary compensation from any Non-Profit Customer, individual or agency in order to receive a donation coordinated through Dishefs.  Dishefs does not own, control, or manage any Merchant or Non-Profit Customer listed on the Non-Profit Match-Up Marketplace.

 

Dishefs offers a marketplace, it is not itself a merchant.  The Services includes assistance in connecting Merchants to Non-Profit Customers to coordinate donations, including CO2 waste value and expiration date tracking, but we are not a party to any donation.  

 

3.2 Technology, Not Donation or Delivery Services

 

Non-Profit agrees neither Dishefs nor its affiliates provide any delivery services. Rather, Dishefs provides technology services that will enable Merchant to connect with Non-Profit who may accept donated Items from Merchant, and, in some circumstances, may enable delivery people to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Non-Profit Customers seeking delivery services.  "MerchantDriver," refers to an employee or contracted delivery person of a Merchant.  "Gofer," refers to independent contractors that intend to seek, receive, and fulfill on-demand requests for delivery services using Dishefs' proprietary technology under license from Dishefs or its affiliates.  "Alternate Gofer," may refer to an independent contractor of Dishefs or a Dishefs employee who from time to time provides such delivery services.  "3rd Party Driver" refers to a driver contracted with by a third-party service such as PostMates, DoorDash, UberEats, or InstaCart.  

 

Mobile Services: The Service may include certain services that are available via a mobile device, including (i) the ability to upload content (including donation offerings or Merchant or Customer information) to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Dishefs and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Dishefs account information to ensure that your messages are not misdirected. You acknowledge and agree that your use of the Service must be in accordance with the usage rules established by your mobile device platform or service provider. 

 

By registering for and using Dishefs and providing your contact information, you are consenting to be contacted by Dishefs or any of its business partners by telephone, text message (which may be automated), email, fax, telephone or any means, even if you have opted in to the National Do Not Call List, any state equivalent Do Not Call List or the internal Do Not Call List of any company. In the event you no longer want to receive communications from Dishefs or its business partners, you agree to notify Dishefs or its business partner directly. You opt-out of various contact methods by emailing support@Dishefs.com. 

 

General Practices Regarding Use and Storage: You acknowledge that Dishefs may establish general practices and limits concerning use of the Service. You agree that Dishefs has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that Dishefs reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Dishefs reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

 

3.3 Conditions of Use

 

User Conduct: You are solely responsible for all descriptions, pictures, listings, information, data, text, music, sound, graphics, video, messages or other materials ("content") that you upload, post, publish or display (hereinafter, "upload") or email or otherwise use via the Service. Below are examples of the kind of content and/or use of the Service that is illegal or prohibited by Dishefs.  Dishefs reserves the right to investigate and take appropriate legal action against anyone who, in Dishefs' sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:

 

a) sell, post or otherwise transmit any content or information relating to a donation offering or any other content that (i) you do not have a right to sell or transmit under any law or under contractual or fiduciary relationships; (ii) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable; (iii) infringes any intellectual property or other proprietary rights of any party; (iv) poses or creates a privacy or security risk to any person; (v) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vi) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "contests," "sweepstakes," or any other form of solicitation; (vii) in the sole judgment of Dishefs, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Dishefs or its users to any harm or liability of any type;

 

b) solicit personal information from anyone under the age of 18, or otherwise attempt to violate the terms of the Privacy Policy or Dishefs' commitment to the protection of children's privacy and safety on the internet;

 

c) harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

 

e) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

 

f) use the Service to request, make or accept a donation independent of the Service, to circumvent any fees that would otherwise apply to such transaction;

 

g) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

 

h) engage in any activities that violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., and its regulations at 47 C.F.R. § 64.1200; the Do-Not-Call Implementation Act, 15 U.S.C. § 6101 et seq.; or any similar anti-spam, data protection, or privacy legislation in any jurisdiction;

 

i) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; 

 

j) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service; or

 

k) violate any applicable local, state, national or international law, or any regulations having the force of law.

 

4. MERCHANT OBLIGATIONS

 

4.1 Availability of Items and Services

 

Subject to their agreements with Dishefs, Merchants will make Items available for donation through the Dishefs App ("Available Items") during its normal business hours and ensure the Available Items lists are accurate. Merchants will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety ("Food Safety Standards") and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items ("Alcohol Safety Standards"). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items ("Criteria") and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a "Substandard Item"), Dishefs may, in its sole discretion, remove such Item from the Dishefs App. Items that contain (or may contain) an endangered species may not be made available for donation through, and will be removed from, the Dishefs App. 

 

Subject to their agreements with Dishefs, Merchant represents and warrants that all information for Items (including, but not limited to, calorie count, allergen information, and alcoholic content (if applicable)), that is made available for donation through the Dishefs App is, and at all times will remain, accurate and that the information provided complies with all applicable laws and regulations.  

 

Merchants agree to monitor and respond to Non-Profit Channel inquiries during its normal business hours within two (2) business days of the Inquiry.  As described further in the applicable addenda, Merchant will coordinate with Non-Profit Customer to arrange for provision to a Non-Profit of surplus Items.  Non-Profits will monitor and respond to offers or responses to requests in a timely manner due to the potentially perishable nature of many donations.  If Non-Profit does not comply with the agreement to pick up donation in a timely manner, Dishefs reserves the right to terminate or suspend Non-Profit's ability to request or accept donations through the Dishefs Services. 

 

If a Merchant or Non-Profit Customer in a Non-Profit transaction reports to Dishefs that the terms contained in this agreement and the applicable addenda were not complied with, Dishefs may, in its sole discretion, remove the Listing for that Merchant or Non-Profit from the Dishefs App.  

 

Merchant represents and warrants that all information for Items and Services offered through the Match-Up Channels, including available hours, calorie counts, and allergen information, that is made available through the Dishefs App is, and at all times will remain, accurate.  In addition, Merchant will ensure that all information in its listings of surplus Items offered for donation, including, if applicable, CO2 waste value and expiration date, is accurate and comply with all applicable laws and regulations.

 

4.2 Item Responsibility

 

Non-Profit Customer acknowledges and agrees that neither Dishefs nor the Gofer or 3rd Party Driver takes title to any Item at any time. 

 

4.3 Devices

 

If Dishefs supplies a tablet or other mobile device ("Device") to Non-Profit to use in connection with the Dishefs App, Non-Profit agrees that: 

 

a) Device(s) may only be used for the purpose of coordinating donations through the Dishefs App, and 

 

b) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of Dishefs and/or its affiliates, and upon expiration or termination of the Agreement, or the absence of all of Non-Profit's location(s) from the Dishefs App for longer than forty-five (45) days, Non-Profit will return all applicable Device(s) to Dishefs within ten (10) days, at Non-Profit's own cost.  If Non-Profit receives a wireless data plan for the Device, Dishefs may require a weekly reimbursement Non-Profit for the costs associated with the wireless data plan of each applicable Device. Non-Profit agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a fee ("Damage Fee")..

 

4.4 Use Restrictions

 

In connection with the access to and use of the Dishefs Services and Dishefs Tools, Non-Profit will not (and will not allow any third party to): 

 

1. reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Dishefs Services (except to the extent applicable law prohibits reverse engineering restrictions); 

 

1. provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Dishefs Tools or Dishefs Services (except as otherwise authorized by Dishefs); or 

 

1. possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Merchant will not (and will not allow any third party to) use the Dishefs Services or any other transactional, operational, performance or other data or information that is related to the donation of Items to Non-Profit Customers through the Dishefs App to directly or indirectly compete with Dishefs or its affiliates or the Dishefs Services. 

 

4.5 Item Restrictions

 

The following restricted Items may not be donated or accepted using the Dishefs App: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Merchant does not have permission to offer. Dishefs may remove from—or otherwise limit a Merchant's ability to post to—a Merchant's Dishefs menu any Items Dishefs deems prohibited or inappropriate. For clarity, donations of alcohol is not permitted.  Dishefs may restrict the donation of Items Dishefs App based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery). 

 

4.6 Non-Profit's Facilities

 

In addition to the foregoing conduct restrictions, you represent and warrant that your use of the Services to accept donations of surplus Items does not violate any applicable federal, state, municipal, or local law or regulation.  You should confer with your legal advisor regarding laws and regulations in your state.  Dishefs is not liable, and will be held harmless for any consequences that may arise from your non-compliance with applicable laws and regulations in your state, municipality or locality.  

 

4.7 Ingredients and Allergens

 

In addition to any other required Item information, for any particular donation, Merchants agree to provide a comprehensive list of ingredients contained in the donated Item, including any known allergens.  Dishefs is not responsible for the accuracy of the information and labeling of donated Items.   

 

Non-Profit Customers should be advised that donated Items, may be prepared in facilities using the same equipment that is used to prepare food or other Items containing other allergens even if the allergen is marked as being absent from a food.  Dishefs shall not be liable for Merchant's failure to provide such information, nor any illness, health problem, or other damages that may result from any order or consumption of any donated Items received through the Service.  

 

4.8 Marketplace Risk

 

Dishefs is not affiliated with or endorsed by any grocery retailers, farmer’s market associate, Personal or professional Chef, restaurant or other meal preparation service made available through the Service. Beyond its capacity as a marketplace and technology platform, Dishefs is not involved in any transaction between Non-Profit Customers and Merchants, and does not act as a Non-Profit Customer, Merchant (or affiliate of a Non-Profit Customer or Merchant) or broker with respect to any transactions.  There are risks that you assume when dealing with other users (including those who may be acting under false pretenses) and all of these risks are borne by you, and not Dishefs.  We encourage you to use the various functionalities of the Service (e.g., Merchants profiles, meal options, and user reviews) to help evaluate the user with whom you are dealing.

 

4.9 Non-Profit Customers as Independent Entities

 

Users of the Service acting in the capacity of a Merchant do so on behalf of a legal entity or in their personal capacity, as an independent entity and not as an employee of Dishefs.  As a Non-Profit Customer, you agree that: (i) you are responsible for and will comply with all applicable laws and registration requirements; (ii) these Terms do not create an association, joint venture, partnership, franchise, or employer/employee relationship between you and Dishefs, or you and a Merchant; (iii) you will not represent yourself as an employee or agent of Dishefs or any Customer or Merchant; and (iv) you will not be entitled to any of the benefits that Dishefs may make available to its employees, such as vacation pay, sick leave, and insurance programs, including group health insurance or retirement benefits.  

 

Dishefs does not control the behavior of users of the Service or the information or User Content (defined below) provided by other users.  As a result, Dishefs does not guarantee or endorse the legality, authenticity, quality, or safety of any donated Items offered, the truth or accuracy of any Listings, or the ability of Merchants to offer donated Items, or Non-Profit Customers to use Services.  Dishefs reserves the right to delay the completion of any transaction for a reasonable period of time for purposes of fraud detection and otherwise protecting Dishefs and its users from illegal or wrongful activities or other violations of these Terms.

 

4.10 Special Notice for International Use

 

Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. 

 

4.11 Commercial Use

 

Unless otherwise expressly authorized herein, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Dishefs App or Services, use of the Dishefs App or Services, or access to the Dishefs App or Services. 

 

5. FEES AND TAXES

 

In the event that a transaction agreed on between a Merchant and a Customer cannot be completed for sudden, unforeseen reasons out of the control of Merchant, such as technology breakdown, power outage, weather, or police or civil disturbance, no fees will be due from Merchant for uncompleted transactions.  This exception will not apply to any circumstance within the control of the Merchant.  In such a circumstance, Dishefs will attempt to coordinate and complete the transaction by alternate means such as communicating through phone, text, or Google forms.  The final decision on whether to complete the transaction by alternate means, however, in this case will rest with Merchant.  

 

Non-Profit Customers pay no fees of any kind to accept donated Items.  

 

Merchants who use the Non-Profit Match-Up channel will pay a subscription fee to Dishefs to use the Non-Profit Match-Up Channel based on the size of the contemplated pickups (small, medium, or large).  In addition, for each Non-Profit Match-Up pickup transaction effectuated through the Dishefs App, Merchants will pay Dishefs a delivery fee per pickup.  Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as described in the applicable section of the Fee Policy.  

 

Non-Profit Customers will create profiles on the Dishefs app to facilitate matching their needs to a Non-Profit Merchant's offerings.  Non-Profit Customers will not pay a fee to Dishefs to post their profile or to be matched to a potential Merchant donor.  

 

In addition, Merchants will have the opportunity to enter information in the Dishefs app regarding the expiration date of their inventory, as well as information regarding the CO2 Waste Value of Food Items if they were disposed of without being used.  In this way, Merchants can best facilitate donation of food items before their expiration, thus reducing their burden on the Earth's ecosystem.  

 

Merchants will receive a detailed report which will serve as a Non-Profit donation receipt showing the Items donated to a Non-Profit through a finalized transaction facilitated by the Dishefs Match-Up Channel.  The report will include the Merchant's valuation of each donated item.  Under no circumstances will Dishefs be responsible for any consequences resulting from Merchant's misvaluation of the donation for tax deduction purposes.  Non-Profit acknowledges and agrees that the member or member(s) of its organization responsible for maintaining the record within the Dishefs App of donated Items it has accepted has valid signatory authority on behalf of the Non-Profit organization so that the donation receipt provided to the donating Merchant is a valid receipt.  

 

Further, to avoid delay in provisions of donation receipts, a donation receipts must be finalized before Non-Profit can complete another donation transaction.  

5.1 Additional Information

 

Dishefs may, from time to time, require Non-Profit to provide certain additional information ("Additional Information") pertaining to the ultimate recipients of donations.  Such information include data about the recipients such as age group, sex, location, ethnicity, race, religion, LGBTQ status, veteran status, etc.  The Additional Information will be used for analysis, reporting, and planning purposes

 

5.2 Third-Party Distribution Channels

 

Dishefs offers Software applications that may be made available through the Apple App Store, Android Market or other distribution channels ("Software Distribution Channels"). If you obtain such Software through a Software Distribution Channel, you may be subject to additional terms of the Software Distribution Channel. These Terms of Service are between you and us only, and not with the Software Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of our Services, you agree to comply with all applicable terms of any agreement for such third-party products and services.

 

With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, "Apple-Enabled Software"), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:

 

1. Dishefs and you acknowledge that these Terms of Service are concluded between Dishefs and you only, and not with Apple Inc. ("Apple"), and that as between Dishefs and Apple, Dishefs, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.

 

1. You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.

 

1. Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.

 

1. Dishefs and you acknowledge that Dishefs, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software.  

 

1. You represent and warrant 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.

 

1. You represent and warrant that you have in place anti-money laundering procedures which comply with applicable law where you operate.  You agree to notify Dishefs of any suspicious activity of which you become aware relating to transactions involving Dishefs. 

 

1. If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to support@Dishefs.com.

 

6. REPORTING

 

Dishefs may provide Merchant or Non-Profit Customer aggregate information regarding the number of Items donated or received (including CO2 waste value), pursuant to an Agreement.  Dishefs will also provide reasonable information regarding any donation made, and any other information Dishefs is permitted to provide under applicable privacy laws and terms with Customers and Merchants. To the extent applicable, Merchants and Non-Profit Customers agree that Dishefs may share Merchant's transactional data regarding donated Items with Merchant's or Non-Profit Customer's parent company, Franchisor, or parent organization.

 

7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES

 

7.1 Marks

 

Subject to this Agreement, each party hereby grants to the other party (and, in the case of Dishefs, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the Dishefs Services. For purposes of this Agreement, the term "Marks" will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such Marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant's Marks by Dishefs or its affiliates in connection with making Items available through the Dishefs App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. 

 

Without limiting anything in the Agreement, Non-Profit Customer represents and warrants that its Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Non-Profit Customer agrees that Dishefs or its affiliates may remove Non-Profit's Marks from the Dishefs App if Dishefs or its affiliates receive notice or otherwise reasonably believe that such Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights. 

 

In connection with your use of the Service you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. 

 

If you are blocked by Dishefs from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Dishefs, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Dishefs.

 

The Dishefs name and logos are trademarks and service marks of Dishefs (collectively the "Dishefs Trademarks"). Other Dishefs, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Dishefs. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Dishefs Trademarks displayed on the Service, without our prior written permission in each instance. 

 

7.2 No Development

 

EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA, OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. 

 

Any development activities relating to any technology, content, media, or other intellectual property must be the subject of a separate written agreement between Dishefs and Non-Profit prior to the commencement of any such activities.

 

7.3 Marketing

 

Dishefs and its affiliates may showcase the availability of its Non-Profit Match-Up Services through the Dishefs App by various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Dishefs (or a party designated by Dishefs acting on Dishefs' behalf) may take video and still images for marketing and other efforts related to the Dishefs App ("Dishefs Pictures"). Non-Profit Customer agrees that Dishefs Pictures (including all intellectual property rights therein) are and will remain the sole and exclusive property of Dishefs or its affiliates. Additionally, Non-Profit may provide videos, still images, or other materials to Dishefs or its affiliates ("Marketing Materials") for use in connection with the marketing and promotion of Dishefs.  Non-Profit hereby grants Dishefs and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Marketing Materials in connection with Merchant's promotional activities relating to the Dishefs Services. Without limiting anything in the Agreement, Non-Profit represents and warrants that the Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Marketing Materials contain any third-party materials, Non-Profit is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Dishefs to be able to use the Marketing Materials in accordance with this Section. Non-Profit agrees that Dishefs or its affiliates may remove Marketing Materials from the Dishefs App if Dishefs or its affiliates receive notice or otherwise reasonably believe that such Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

 

7.4 Publicity

 

Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

 

8. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK

 

8.1 Definition

 

"Proprietary Information" means any confidential, proprietary or other non-public information disclosed by or on behalf of one party ("Discloser") to the other ("Recipient"), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant's Items to Customers through the Dishefs App and the Terms and conditions of this Agreement. Proprietary Information will not include information that:

 

1. was previously known to the Recipient without an obligation of confidentiality; 

 

1. was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or 

 

1. is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a "Representative"). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Dishefs and its Affiliates to disclose the terms of this Agreement to Merchant's franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form. 

 

8.2 Privacy

 

Non-Profit agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of accepting Items under this Agreement. Non-Profit will maintain the accuracy and integrity of any Personal Data provided by Dishefs and in Non-Profit's possession, custody or control. Non-Profit agrees to retain Personal Data provided to Non-Profit by Dishefs solely by using the software and tools provided by Dishefs. "Personal Data" means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered "personal data" or "personal information" under the applicable law.

 

8.3 Passwords

 

Non-Profit is responsible for maintaining the integrity of information related to Non-Profit's access and use of the Dishefs Tools and related Dishefs Services, including any password, login or key information. Non-Profit represents and warrants that it will not share such information with any third party. Non-Profit agrees to (a) immediately notify Dishefs of any unauthorized use of its password or account or any other breach of security, and (b) ensure that it exits from its account at the end of each session when accessing the Service. Dishefs will not be liable for any loss or damage arising from your failure to comply with this Section.

 

8.4 Data Re-Identification Restriction

 

Without limiting any other provision of this Agreement, including any provision in this Section 8, Non-Profit will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose. 

 

8.5 Third-party Material

 

Under no circumstances will Dishefs be liable in any way for any content or materials of any third parties (including users), including, but not limited to, any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Dishefs does not pre-screen content, but that Dishefs and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Dishefs and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Dishefs, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. 

 

8.6 User Content Transmitted Through the Service

 

With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Dishefs and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. 

 

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions"), provided by you to Dishefs are non-confidential and non-proprietary, and Dishefs will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. 

 

You acknowledge and agree that Dishefs may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Dishefs, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

 

8.7 Copyright Complaints

 

Dishefs respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Dishefs of your infringement claim in accordance with the procedure set forth below.

 

Dishefs will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Dishefs' Copyright Agent at legal@Dishefs.com (Subject line: "DMCA Takedown Request"). You may also contact us by mail at: 

 

100 Waxhaw Pkwy.

Waxhaw, NC 28173

 

To be effective, the notification must be in writing and contain the following information: 

 

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 

 

1. a description of the copyrighted work or other intellectual property that you claim has been infringed; 

 

1. a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service; 

 

1. your address, telephone number, and email address; 

 

1. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; 

 

1. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. 

 

8.8 Counter-Notice

 

If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent: 

 

1. your physical or electronic signature; 

 

1. identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; 

 

1. a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and 

 

1. your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Western District of North Carolina and a statement that you will accept service of process from the person who provided notification of the alleged infringement. 

 

If a counter-notice is received by the Copyright Agent, Dishefs will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.

 

8.9 Repeat Infringer Policy

 

In accordance with the DMCA and other applicable law, Dishefs has adopted a policy of terminating, in appropriate circumstances and at Dishefs sole discretion, users who are deemed to be repeat infringers. Dishefs may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

 

8.10 Third-Party Websites

 

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Dishefs has no control over such sites and resources and Dishefs is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Dishefs will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Dishefs is not liable for any loss or claim that you may have against any such third party.

 

8.11 Social Networking

 

From time to time, we may allow you to register for the Service using third-party services and otherwise enable various third-party services (e.g., PostMates, DoorDash, UberEats, or InstaCart) to be directly integrated into your Dishefs experience. By directly integrating these services into the Service, we make your online experiences richer, easier and more personalized. To take advantage of these features, we may ask you to register for or log into such services on the websites of their respective providers. By enabling third-party services within the Service, you are allowing us to pass your log-in information to these service providers for this purpose. For more information about the implications of activating these third-party services and Dishefs' use, storage and disclosure of information related to you and your use of such services within the Service (including your friend lists and the like), please see our Privacy Policy at https://www.Dishefs.com/privacy. However, please remember that the manner in which third-party services use, store and disclose your information is governed solely by the policies of such third parties, and Dishefs shall have no liability or responsibility for the privacy practices or other actions of any third-party site or service that may be enabled within the Service.

 

In addition, Dishefs is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with third-party services. As such, Dishefs is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party service. Dishefs enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.

 

8.12 Feedback

 

Non-Profit may, but is not obligated to, provide or otherwise make available to Dishefs or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Dishefs and its affiliates' products and services ("Feedback"). However, to the extent that Non-Profit provides or otherwise makes available Feedback to Dishefs or its affiliates, Non-Profit hereby grants to Dishefs and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sub-licensable right to use and otherwise exploit such Feedback. 

 

9. RATINGS

 

Non-Profit acknowledges and agrees that, after receiving Items or Services, it may be prompted by the Dishefs App to provide a rating of such Item or Service and, at such Non-Profit Customer’s option, to provide comments or feedback related to the Non-Profit Customer’s experience with Merchants and the relevant Item or Service on the Dishefs App ("Customer Feedback"). Dishefs and its affiliates reserve the right to use, share, and display Non-Profit Customer Feedback in any manner in connection with the business of Dishefs and its affiliates without attribution to or approval of Non-Profit Customer or Merchant. Non-Profit acknowledges that Dishefs and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Dishefs and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or Dishefs or its affiliates’ content policies.

 

10. REPRESENTATIONS AND WARRANTIES

 

10.1 Representations and Warranties. 

 

Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Non-Profit further represents and warrants that to the extent Non-Profit has affiliates or partners who participate in any activities under this Agreement, Non-Profit will ensure that such affiliates or partners will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.

 

10.2 Disclaimer

 

Except as set forth herein, neither Dishefs nor Non-Profit makes any representations, and hereby expressly disclaims all warranties, express or implied, regarding its services or products or any portion thereof, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance.  

 

11. INDEMNITY

 

11.1 Indemnified Claims

 

Each Party ("Indemnifying Party") will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the "Indemnified Party") from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorneys' fees) (collectively, "Losses") with respect to any third-party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Dishefs Indemnified Parties from and against any and all Losses with respect to any third-party claim arising out of or related to: Non-Profit's violation or alleged violation of any applicable food or other health and safety code, rule or regulation.  

 

11.2 Procedure

 

We will provide you prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

 

12. LIMITS OF LIABILITY

 

Except for liability arising from a party’s gross negligence, willful misconduct, indemnification obligations or a breach of confidentiality obligations: (a) in no event will either party be liable for any claim for any indirect, willful, punitive, incidental, exemplary, special or consequential damages, or loss by any third party arising out of this agreement, or loss or inaccuracy of data of any kind, whether based on contract, tort, or any other legal theory, even if such party has been advised of the possibility of such damages; and (b) each party’s total cumulative liability of each and every kind under this agreement will not exceed One Hundred Thousand Dollars ($100,000). The foregoing limitation of liability and exclusion of certain damages will apply regardless of the success or effectiveness of other remedies.

 

13. INSURANCE

 

Dishefs does not maintain insurance for liabilities that may arise from your use of the Service as either a Customer or Merchant. Dishefs recommends that you obtain appropriate insurance to cover the operation of an organization of your type in the geographic area(s) in which you operate.  We recommend that you review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Merchants or any third party service.  

 

14. ADDENDA AND SUPPLEMENTAL TERMS

 

Non-Profit will comply with all applicable then-current Addenda.  In addition, supplemental terms may apply to Non-Profit use of the Dishefs Services and the Dishefs Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (collectively, the "Addenda"). Addenda are in addition to, and will be deemed a part of, the Agreement. Addenda will prevail over the Agreement in the event of a conflict. Dishefs will use good faith efforts to provide Non-Profit with written notice of any material updates to the Addenda, and, if Non-Profit does not agree to comply with the terms of any such update, Non-Profit may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Dishefs Services and Dishefs Tools. By continuing to use the Dishefs Services or the Dishefs Tools, Non-Profit will be deemed to accept the Addenda. Notwithstanding anything to the contrary, the terms and conditions of Dishefs then-current Privacy Policy, currently available at: https://privacy.Dishefs.com/policy will apply to Dishefs' collection, use and processing of Personal Data. 

 

15. TERM AND TERMINATION

 

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date ("Initial Term") and will automatically renew for successive one (1) year periods (each, a "Renewal Term" and together with the Initial Term, the "Term"). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Dishefs may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A "Brand Matter" means an event involving Non-Profit that, in Dishefs' reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable food or other health or safety code.  All payment obligations will survive the expiration or termination of this Agreement.

 

16. NOTICE

 

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to Dishefs should be provided to Attn: Legal – [100 Waxhaw Parkway, P.O Box 93, Waxhaw, NC, 28173, Email: support@dishefs.com.  Notices to Merchant should be provided to the address provided by Merchant. The parties agree that all legal documents (including complaints and subpoenas) directed to Dishefs will be served on Dishefs' registered agent for service of process. The name and current contact information for the registered agent in each state is available by contacting support@dishefs.com

 

17. DISPUTE RESOLUTION AND ARBITRATION

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS

 

17.1 Arbitration

 

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the "JAMS Rules"), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator ("Arbitrator"), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree: 

 

1. The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction. 
2. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. 
3. The seat, or legal place, of arbitration will be Waxhaw, North Carolina, USA or the JAMS location closest to the complaining party’s place of business. 
4. The language to be used in the arbitral proceedings will be English. 
5. The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules. 
6. To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.
7. This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
8. Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.
9. Each party shall pay its own proportionate share of Arbitrator fees and expenses plus any expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
10. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
11. Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the State of North Carolina.

 

17.2 Termination

 

You agree that Dishefs, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Dishefs believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Dishefs may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of the Terms of Service may be effected without prior notice, and acknowledge and agree that Dishefs may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Dishefs will not be liable to you or any third party for any termination of your access to the Service.

 

17.3 User Disputes

 

You agree that you are solely responsible for your interactions with any other user in connection with the Service and Dishefs will have no liability or responsibility with respect thereto. Dishefs reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

 

17.4 General

 

17.4.1 Entire Agreement.

 

These Terms of Service constitute the entire agreement between you and Dishefs and govern your use of the Service, superseding any prior agreements between you and Dishefs with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. 

 

17.4.2 Governing Law

 

These Terms of Service will be governed by the laws of the State of North Carolina without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Dishefs agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Union County, North Carolina. 

 

17.4.3 Severability

 

The failure of Dishefs to exercise or enforce, at any time or for any period of time, any right or provision or option of these Terms of Service, or the failure of either part to exercise any option herein, will not constitute a waiver of such right or provision or option. 

 

If any provision of these Terms of Service is found by a court of competent jurisdiction or ruling of an arbitrator to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. 

 

17.4.4 Time to File

 

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within sixty (60) days after such claim or cause of action arose, and in no event more than sixty (60) days after the termination of the governing Agreement, or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  

 

17.4.5 Assignment

 

Merchant may not assign this Terms of Service without the prior written consent of Dishefs.  This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by Merchant without the prior written consent of Dishefs.  Upon written notice to Dishefs, Merchant may assign or transfer this Agreement (a) to an affiliate of Merchant, or (b) in connection with the sale of all or substantially all of Merchant's equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with Dishefs, access to historical reporting information about issues related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant's Location(s), the parties to that transaction will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to conduct donation transactions on the Dishefs App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. 

 

Dishefs may assign or transfer this Terms of Service, in whole or in part, without restriction.  

 

17.4.6 Section Titles

 

The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. 

 

17.4.7 Notice

 

Notices to you may be made via either email, regular mail, or nationally-recognized overnight courier service. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

 

17.4.8 Your Privacy 

 

At Dishefs, we respect the privacy of our users. For details, please see our Privacy Policy located at https://www.Dishefs.com/privacy. By using the Service, you consent to our collection and use of personal data as outlined therein.

 

17.4.9 Waiver of Jury Trial

 

Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party:

 

1. certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver; and 

 

1. acknowledges that it and the other party hereto have been induced to enter into this Agreement.

 

18. DIVERSITY AND INCLUSION

 

A Dishefs Merchant or Customer may not, under any circumstances, refuse to serve, discourage dealings with, or alter the terms and conditions, pricing, or limitations of any of its dealings with any other party, including any customer, employee, contractor or other individual based on any of the following factors:

 

Race

Color

Ethnicity

National Origin

Religion

Sexual Orientation

Gender Identity

Marital Status

Pregnancy

Age (except in limited circumstances where prescribed by local laws or regulations or in the case of programs that may target beneficial services for specific participant groups, as agreed upon between Dishefs and Merchant)

Disability (except in limited circumstances where prescribed by local laws or regulations)

 

Dishefs considers the gender of individuals to be what they identify and/or designate on their profiles, and we expect the Dishefs community to do the same. This includes respecting the pronouns (he/him, she/her, they/them, etc.) with which any users within the community identify themselves. 

 

Merchant acknowledges and agrees that upon Dishefs' receipt of evidence of Non-Profit's discrimination under any of these categories, Dishefs will have the right to immediately terminate this Agreement following notice to Non-Profit.

 

19. ADDITIONAL TERMS

 

The territory of this Agreement is the United States ("Territory"), and all payments issued under this Agreement must be in U.S. Dollars. 

 

Non-Profit agrees to receive calls, SMS messages and other communications, including those made available by auto-dialer, sent by or on behalf of Dishefs or its affiliates. 

 

In this Agreement, "including" means "including, without limitation," and examples are illustrative and not the sole examples of a particular concept. 

 

Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a "Force Majeure Event").  The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. 

 

Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. 

 

Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. 

 

This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating to such subject matter hereof. 

 

This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.

 

We reserve the right, at our sole discretion, to change or modify portions of these terms of service at any time. 

 

20. NOTICE FOR NORTH CAROLINA USERS

 

Under North Carolina General Statute, users of the Service from North Carolina are entitled to the following specific consumer rights notice:  The Consumer Protection Division of the Office of the North Carolina Attorney General may be contacted in writing at: 

 

North Carolina Consumer Protection Division

114 West Edenton Street

Raleigh NC  27603

 

or by telephone at (919) 716-6400 or online at https://ncdoj.gov/file-a-complaint/. You may contact Dishefs in writing at 100 Waxhaw Pkwy., Waxhaw, NC 28173, or by telephone at (980)-477-5874.

 

21. QUESTIONS? CONCERNS? SUGGESTIONS? 

 

Please contact us at legal@Dishefs.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.

 

Date of Last Revision:  _________, 2023

 

 

NON-PROFIT ADDENDUM

 

Regarding Non-Profit Organization donations, Dishefs has no control over and does not guarantee (a) the existence, quality, safety, authenticity, or legality of the food or other Items offered for donation on the Service; (b) the truth or accuracy of a Merchant's content or listings on the Service; (c) the ability of a Merchant to offer the Items listed through the Service; (d) that a Customer or Merchant will actually complete a transaction; or (f) that a Merchant or Customer providing or accepting the donated Items is certified or compliant with all applicable laws and regulations or that it will provide any particular level of service or quality.  

 

Under no circumstances will a Merchant or Customer using the Non-Profit Channel (a) charge any administration, membership, maintenance or delivery fees; (b) require a minimum donation or offering; (c) impose any other prerequisite that eliminates a free transaction.  

 

Each Merchant and Customer are solely responsible for complying with all applicable laws, rules and regulations and standards, including but not limited to those pertaining to the listing, provision and/or delivery, or acceptance of all donations coordinated through Dishefs.  Merchants are solely responsible for updating details relating to the donations offered.  Each Merchant is solely liable for the quality, safety, cleanliness, and adherence to all applicable laws, rules and regulations of the donations provided by coordination through Dishefs and Dishefs does not verify the credentials, representations, products, or services offered by any Merchants, and does not guarantee the quality of the product or services, or that Merchants comply with applicable laws.  Dishefs will not be liable or responsible for any Item donated by Merchants that are a cause of injury or that do not meet Customer's expectations in any manner.  

 

Dishefs will not be liable to the Merchant, Customer, or any other third party (such as a landlord or management company) if the Merchant or Customer using the Non-Profit Channel does not have the necessary authority referred to anywhere in this agreement and the Merchant and Customer agree to indemnify, defend and hold Dishefs harmless from and against any claim or loss it may suffer as a result of a breach of the warranty, or any other provision of this Agreement.

 

If Non-Profit Customers are unable to pick up donations, Dishefs may provide delivery service for Non-Profit donations through the use of Gofers or Alternate Gofers.  We may also provide certain technological information or support to facilitate the resolution of disputes between Non-Profit Customers and Merchants.  

 

In Non-Profit transactions, the original donor (Merchant) and Dishefs are exempt from any liability resulting from the condition of any Donated Product.  The Non-Profit Customer further agrees to hold Dishefs and Merchants free and harmless against any and all liabilities, damages, losses, claims, causes of action and suits of law or inequity or any obligation whatsoever arising out of any action of the organization of any personnel employed or contracted by the organization in connection with its storage and use of any Donated Product.

 

Non-Profit Customer organizations are responsible for the proper cleaning and storage of any Dishefs food transportation materials including but not limited to insulated bags, tote bags, etc., until a Dishefs representative retrieves them from your facility.  Replacement cost for lost or stolen items are the responsibility of the Non-Profit Customer.

 

For the sake of completeness, Dishefs restates here that if Merchant or Customer chooses to use the Non-Profit Match-Up Channel, all terms pertaining to Non-Profit Match-Ups found elsewhere in this Agreement apply to transactions coordinated through Dishefs' Non-Profit Match-Up Channel.