Best Food Trucks User Agreement & Terms of Use
Effective Date: October 5th 2022
THIS USER AGREEMENT & TERMS OF USE (COLLECTIVELY, “TERMS”) CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS, OBLIGATIONS, AND REMEDIES. PLEASE READ THEM CAREFULLY. THESE TERMS CREATE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND BFT AS SET FORTH HEREIN AND YOUR USE OF THE BFT PLATFORM CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO BE BOUND BY THEM. THESE TERMS INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AS WELL AS AN ARBITRATION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED BETWEEN YOU AND BFT.
These Terms constitute a binding contract ("Agreement") between you ("User" or "You") and Best Food Trucks, Inc. (“BFT,” “we,” “us,” or “our”) governing your access to and use of the BFT website, including any subdomains thereof, any other websites through which BFT makes its services available, BFT’s mobile, tablet and other smart device applications, and application program interfaces, and all associated services (collectively, the “BFT Platform”). By accessing or using the BFT Platform, You signify that You have read, understand and agree to be bound by this Agreement and Terms, whether or not You are a registered user of the BFT Platform. We may amend these Terms at any time by posting a revised version on the BFT website and mobile application. The revised version will be effective at the time we post it. Your continued use of the BFT Platform after such amendments constitutes your acceptance of the new Agreement and Terms of Use.
1. License
a. Grant.
User is granted a non-exclusive, non-transferable, limited license to access the BFT Platform. The BFT Platform consists of various databases, services, functions and remotely accessed gateways (collectively "Features"), which may change from time to time. Access to certain Features may be restricted or may be subject to a separate fee. Certain Features may be provided to User for free; BFT reserves the right to charge a fee for such free Features in the future upon written notice to the User. User is licensed to use data made available on the BFT Platform ("Data," including "Downloaded Data" as defined below) solely in the regular course of operating a mobile food vending facility. Certain Features are licensed subject to paragraphs 2 through 3 or subject to 'Additional Terms" (as defined below), all of which take precedence over the license granted in this paragraph. Except as otherwise provided with respect to particular Data, the license includes the right to download and temporarily store insubstantial portions of Data ("Downloaded Data") to a storage device under User's exclusive control solely (i) to display internally such Downloaded Data and (ii) to communicate and execute transactions with other parties within the BFT Platform. User agrees to never store any Data for more than seven (7) days and to destroy any stored Data within twenty-four (24) hours upon email or other written request from Best Food Trucks.
b. Limitations.
Excluding the User Content (as defined below), all content on the BFT Platform ("Platform Content") is the proprietary information of BFT, with all rights reserved by BFT. No Platform Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without BFT’s prior written permission in each instance. Provided that You are eligible to use the BFT Platform and subject to these Terms, You are granted a limited license to access and use the BFT Platform and the Platform Content and to download or print a copy of any portion of the Platform Content to which You have properly gained access solely for your own use, provided that You keep all copyright or other proprietary notices intact. You may not upload or republish Platform Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Platform Content is strictly prohibited. Such license is subject to these Terms and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the BFT Platform or the Platform Content other than as specifically authorized herein, without the prior written permission of BFT, is strictly prohibited and will terminate your limited license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. Your license is revocable at any time without notice and with or without cause. User further agrees not to use any Features, including but not limited to creating a profile on the BFT Platform, in any manner or for any purpose that may violate any law or regulation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful to the reputation of BFT in its sole discretion. User further agrees not to use any Software or the BFT Platform in a manner that impacts the stability or functionality of any Feature; such prohibited uses include, but are not limited to, uploading viruses or other malicious code, or accessing the BFT Platform through any automated means such as a web- crawler. User further agrees not to use the BFT Platform or any other Feature to contact other BFT users for any purpose other than engaging in transactions through the BFT Platform. User further agrees not to execute any lot-booking transaction outside the BFT Platform with another Best Food Trucks User. In addition, User agrees not to use the BFT Platform to: harvest or collect email addresses or other contact information of other Users from the BFT Platform by electronic or other means for the purposes of sending spam, or any other unsolicited communications, including unsolicited emails; act in any unlawful manner, including in a manner that could be deemed to violate applicable laws by touting or hyping an investment, manipulating securities or other investment prices or markets; to interact in any manner that could damage, disable, overburden or impair the BFT Platform; or collect information or otherwise interact with the BFT Platform using automated scripts.
c. Rights in Data.
Except for the license granted in this Agreement, all rights, title and interest in Data, in all languages, formats and media throughout the world, including any copyrights, are and will continue to be the exclusive property of BFT.
d. User Content.
At its sole discretion, BFT may enable Users to create, upload, send, receive, post, and store content, such as text, photos, audio, video, or other materials and information on or through the BFT Platform (“User Content”).
When providing BFT with content or posting content on Best Food Trucks's website, User grants Best Food Trucks a non-exclusive, perpetual, transferable, irrevocable, assignable, royalty-free, fully paid up, sub-licensable (through multiple tiers) right and license to use, reproduce, distribute (through multiple tiers), create derivative works from, publicly perform, display, store, digitally perform, make or deliver digital audio transmissions, encode, transcode, publish (online, on the BFT Platform, on any other website(s), as well as through mobile channels, and offline, in print, radio, television or elsewhere), make, have made, sell, offer for sale, import and commercialize User Content, or any portion thereof, in any manner and context, in any way, in any and all media now known or hereinafter developed and on any device(s), whether or not portable, wired, or wireless, without limitation, throughout the universe, and without any compensation or acknowledgment to you or any third party.
By submitting User Content to the Services, you represent and warrant that you have all rights, power, and authority necessary to grant the rights to such contained within these Terms. Because you alone are responsible for your User Content, you may expose yourself to liability if you post or share Content without all necessary rights.
Although we have no obligation to screen, edit, or monitor User Content, we may, in our sole discretion, delete or remove User Content at any time and for any reason, including for violating these Terms, violating our DMCA and Copyright Policy, or if you otherwise create or are likely to create liability for us.
e. Additional Terms.
Certain Features may be governed by terms and conditions that are different from those set forth in these Terms ("Additional Terms"). User will be given an opportunity to review Additional Terms by receiving notice of such Additional Terms In writing or online. Additional Terms may be modified effective upon Best Food Trucks giving User notice (in writing or online) of the modification. By using Features governed by Additional Terms, User agrees to, and will be obligated to comply with, all such Additional Terms as well as the terms and conditions in this Agreement. All Additional Terms will be considered part of this Agreement.
2. Incorporation of Copyright Policy / DMCA Agent
BFT respects the intellectual property of others and requires users of the BFT Platform to do the same. We have in place a DMCA and Copyright policy [LINK] providing for the removal of any infringing material from the Services and for the termination, in appropriate circumstances, of users who repeatedly post infringing User Content. If you believe that anything on our Services infringes a copyright that you own, you may send a DMCA-compliant takedown notice to BFT’s Designated Agent:
Matthew Geller
If we remove your User Content in response to a copyright or trademark notice, we will notify you. If you believe your User Content was wrongly removed due to a mistake or misidentification in a copyright notice, you can send a counter notification to our Copyright Agent (contact information provided above). Please see 17 U.S.C. § 512(g)(3) for the requirements of a proper counter notification.
BFT’s Copyright Policy / DMCA Agent is available here [LINK] and is fully incorporated herein by reference.
3. Fees and Modification of Fees.
Fees payable by User for access to and/or use of the BFT Platform ("Best Food Trucks Fees") will be determined solely by BFT and will commence on the date BFT processes User's order. User agrees not to register under a false name or use an invalid or unauthorized Payment Method. Fees are exclusive of sales, use, value added tax (VAT) or equivalent, ad valorem, personal property and other taxes, which are the responsibility of User. Booking and transaction fees are due immediately upon completion of any transaction through the BFT Platform. In the event BFT issues User an invoice for any other services, payment shall be due as agreed upon in writing by the parties. Unless otherwise stated, User will pay all such invoices in full within 30 days of receipt. If full payment is not made, User may be charged up to the maximum legal interest on any unpaid balance.
4. Third Party Payment Management.
User acknowledges that the BFT Platform uses third-party software and a third-party payment processor (“Processor”) to manage the payment process. The current Processor is Stripe, Inc. (“Stripe”). The processing and settlement of transactions through the BFT Platform are carried out by the Processor under a separate Stripe Connected Account Agreement, Financial Services Agreement, Stripe Services Agreement, and various other terms and conditions required by Processor (collectively, and together with the equivalent terms and conditions of any other Processor used by BFT, the “Processor Terms”).
By agreeing to these Terms and using the BFT Platform you are agreeing to the creation of an account with the Processor for payment processing through the BFT Platform. You are also accepting and agreeing to be bound by the Processor Terms, which constitute an agreement between you and Processor. BFT is not a party to the Processor Terms and is not liable to you in respect thereof. You acknowledge that Processor may require certain information from you to facilitate payment processing, including but not limited to personal identifying information and financial information, such as social security numbers (or some portion thereof), names, employer identification and/or tax identification numbers, as well as supporting documentation. User also agrees to defend, indemnify, and hold BFT harmless from any injury, damages, claims, judgments, awards, liabilities, or other loss or expense suffered that relate or are in any way connected with Processor.
BFT reserves the right to change the Processor in its sole discretion.
5. Best Food Trucks Software and the BFT Platform.
a. Best Food Trucks Software.
BFT may make available to User, on a subscription basis, software for use in connection with the BFT Platform. Such software, including new versions and the accompanying user documentation, may be referred to collectively as "Software." Software may be licensed to User under a license agreement that will accompany the Software. By using the Software and taking such other action as may be referenced in the Terms as constituting acceptance, User agrees to be bound by the terms and conditions of the accompanying license agreement. If User does not so agree, User must return any tangible copies of the Software in its possession or control.
b. The BFT Platform.
The BFT Platform consists of internet, mobile, and application-based services. BFT grants User a non-exclusive, non-transferable, limited license to use the BFT Platform (including all versions and updates). User may not reverse engineer, decompile, disassemble, scrape or otherwise attempt to discern the source code of the components of the BFT Platform, or any part thereof, nor may User reproduce all or any portion of the components of the BFT Platform. Certain software or devices used by User may not be capable of supporting the BFT Platform.
6. Disclaimer of Warranties and Limitation of Liability.
THE BFT PLATFORM, AND ALL PARTS THEREOF, INCLUDING BUT NOT LIMITED TO THE BFT MOBILE APPLICATION, THE BFT WEBSITE, FEATURES, DATA, AND SOFTWARE ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS. USER'S EXCLUSIVE REMEDY AND BFT'S AND/OR ITS AFFILATES' ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIMS FOR DAMAGES RELATING TO THE BFT PLATFORM, AND ALL PARTS THEREOF, INCLUDING BUT NOT LIMITED TO THE BFT MOBILE APPLICATION, THE BFT WEBSITE, FEATURES, DATA, AND SOFTWARE MADE AGAINST THEM, INDIVIDUALLY OR JOINTLY, UNDER ANY LEGAL THEORY WHATSOEVER, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF THE TRANSACTION FEES CHARGED BY BFT AND PAID BY USER RELATIVE TO THE SPECIFIC FEATURE (I.E., DATABASE, SERVICE, FUNCTION OR GATEWAY), APPLICATION, WEBSITE, OR SOFTWARE, AS APPLICABLE, TO WHICH THE CLAIM ARISES OUT OF OR RELATES TO DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL BFT AND/OR ITS AFFILIATES BE LIABLE TO USER FOR ANY CLAIM RELATING IN ANY WAY TO (I) USER'S INABILITY OR FAILURE TO PERFORM UNDER ANY CONTRACT; (II) ANY LOST PROFITS OR OTHER CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES RELATING IN WHOLE OR IN PART TO USER'S RIGHTS UNDER THIS AGREEMENT OR USE OF, OR INABILITY TO USE, THE BFT PLATFORM, OR ANY PART THEREOF, EVEN IF BFT AND/OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, BFT SHALL HAVE NO LIABILITY WHATSOEVER TO USER FOR ANY CLAIM RELATING IN ANY WAY TO ANY THIRD PARTY REPRESENTATIONS ACCESSED THROUGH THE BFT PLATFORM. NEITHER BFT NOR AFFILIATES MAKE ANY WARRANTY THAT ACCESS TO THE BFT PLATFORM WILL BE UNINTERRUPTED, SECURE, COMPLETE, UP-TO-DATE, OR ERROR FREE. NOR DOES BFT MAKE ANY WARRANTY AS TO THE LIFE OF ANY URL OR THIRD PARTY WEB SERVICE. USER ACKNOWLEDGES THAT PROVISION OF THE BFT PLATFORM ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA. FURTHER, BFT DOES NOT MAKE ANY GUARANTEES OR ENDORSEMENTS, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PARTY OPERATING IN THE BFT PLATFORM, OR ANY PART THEREOF; BFT DOES NOT GUARANTEE THE PERFORMANCE OF ANY CONTRACT FORMED BY USERS IN THE BFT PLATFORM, AND IN NO CASE WILL BFT BE LIABLE FOR THE FAILURE OF ANY USER TO PERFORM UNDER ANY CONTRACT.
7. Relationship with BFT.
User’s relationship with BFT is limited to that of an independent, third-party contractor. User acknowledges and agrees that it is not an employee, agent, joint venturer or partner of BFT for any reason, and no such relationship between BFT and User shall be created for any reason. User acknowledges that User acts exclusively on its own behalf and for its own benefit, and not for the benefit of, or on behalf of, BFT, and BFT shall not be deemed to direct or control you generally or in your performance under these Terms, including but not limited to any and all booking and vending activity undertaken by you arising out of or connected to the BFT Platform. You acknowledge and agree that you have complete discretion whether to list or accept booking or vending opportunities offered through or in connection with BFT or the BFT Platform, or otherwise engage in any other business or economic activities. You further acknowledge and agree that BFT’s relationship(s) with any and all third parties (“BFT Third Party Agreements”), including but not limited to clients, vendors, licensees, licensors, other Users, or business partners of any nature (“BFT Partner”) are BFT’s alone. In the event the client requires an umbrella insurance policy from Best Food Trucks, User may be required to provide BFT with an additional insured designated policy. No contractual, legal, or other relationship or duty to User, including but not limited to third party beneficiary status, shall be created or owed to User by BFT or any BFT Partner under, as a result of, or related to, any BFT Third Party Agreement and/or User’s use of the BFT Platform in connection therewith, including by booking or participating in any vending opportunities offered in connection therewith. User further acknowledges and agrees that User’s booking or participation in any vending or other economic activities offered through or in connection with the BFT Platform, including but not limited to in in connection with any BFT Third Party Agreements, is at BFT’s sole discretion and creates no right or expectation of any nature that the same or similar vending or other economic activities shall be offered or made available to User at any time.
8. Responsibility for Certain Matters.
User is responsible for notifying BFT in writing of persons to whom passwords for profiles created on the BFT Platform (“BFT User Passwords”) are to be issued or from whom BFT User Passwords are to be revoked. User is solely responsible for maintaining security of BFT User Passwords. User is also responsible for all access to and use of the BFT Platform and BFT Passwords by User’s personnel, whether or not User has knowledge of or authorizes such access and use. All such use shall be governed by these Terms.
9. Indemnity.
In the event of any claim by any third party against BFT, its predecessors or successors, or any of their or its past or present officers, employees, affiliates, partners, licensees, or sub-licensees (the “BFT Indemnified Parties”) arising from any action, omission, or breach by User arising out of or related to the BFT Platform, the Terms, or the performance thereof, including but not limited to any vending or other economic activities conducted hereunder, or User Content, User agrees to defend, indemnify and hold harmless the BFT Indemnified Parties, and each of them, against any judgment, award, liability, loss, costs (including litigation costs and attorney's fees), fees (including settlement fees), or damages.
10. Limitation of Claims.
Except for claims relating to Best Food Trucks Fees or improper use of the BFT Platform by User, no claim, regardless of form, which in any way relates to or arises out of User’s access to or use of the BFT Platform or these Terms, may be made, nor such claim brought, more than one year after the party desiring to assert it learns, or with reasonable care could have learned of the basis for the claim.
11. Term and Termination.
These Terms will become effective upon the date User agrees to them by electronically indicating acceptance, or in the case of existing Users or amendments to the Terms, upon the Effective Date of the amendment and after publication of the amended Terms on the BFT website and mobile application. User’s continued use of the BFT Platform after publication of any amendments to the Terms as forth herein constitutes User’s agreement to the new Terms, as amended. The Terms, including any amendments thereto, shall continue so long as User uses the BFT Platform or until terminated by BFT or Processor. You may terminate your agreement to these Terms by de- activating your BFT user account. You may re-active your BFT user account by following the instructions on the BFT Platform and agreeing to the Terms then in effect. We may terminate these Terms and suspend or close your BFT account and your access to the BFT Platform at any time for any reason effective upon providing you with written notice via the contact email address associated with your account. All terms constituting an indemnity, duty to defend, hold harmless, or relating to intellectual property of any type shall survive the termination of these Terms by either party and continue in effect so long as legally permissible.
12. Dispute Resolution; Agreement to Arbitrate
User and BFT agree that all claims, controversies and disputes arising out of or relating to these Terms, including the breach, enforcement, interpretation, termination, validity, or enforcement thereof, or to the use of the BFT Platform, including but not limited to vending or other economic activities conducted thereunder or related thereto or to any BFT Third Party Agreement (collectively, “Claims”) will be settled by binding individual arbitration, subject only to the exceptions contained in this Section 10. Namely, each party shall retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction within the State of California to prevent the actual or threatened infringement, violation, or misappropriation of a party’s intellectual property rights. You acknowledge and agree that both User and BFT are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class or representative action. These Terms evidence a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules and/or the AAA arbitration rules then in effect, which may be accessed at www.adr.org. This provision will survive the termination of these Terms.
13. Entire Agreement
These Terms (including all current and future amendments thereto) embody the entire understanding between the parties with respect to their subject matter and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter. Except as otherwise provided in this Agreement, BFT may amend the terms and conditions of these Terms without notice to User.
14. Force Majeure
User acknowledges that BFT’s ability to operate the BFT Platform and its ability to perform hereunder may be limited by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of Processor or other vendors or suppliers, acts of God, or other causes over which BFT has no reasonable control. Without limiting any other provision in these Terms, User acknowledges that BFT shall not be liable to User for disruption or delays in the BFT Platform, or other nonperformance, caused thereby.15. Notices
Except as otherwise provided herein, all notices must be in writing and addressed to Best Food Trucks, Inc. and sent via certified mail to BFT’s registered agent for service of process and via email to [email protected]. As of the Effective Date, BFT’s registered agent is California Corporate Agents, Inc, (C3035398).
16. Other Provisions
These Terms will be governed by and construed under the law of the state of California, USA without regard to conflicts of law provisions. Neither the Terms nor any part or portion may be assigned, sublicensed or otherwise transferred by User without BFT's prior written consent. Should any provision of these Terms be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby. Failure of any party to enforce any provision of these Terms will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in these Terms are inserted for convenience only and do not constitute a part of these Terms. BFT, as used herein, applies to Best Food Trucks Inc., its predecessors or successors, and any of their or its past or present officers, employees, and/or affiliates.
17. Intellectual Property
Any and all title, ownership rights, and intellectual property rights concerning any ideas, concepts, suggestions, materials and the like that User provides to BFT regarding the BFT Platform shall become the exclusive property of BFT and may be used for its business purposes in sole discretion without any payment, accounting, remuneration or attribution to User. Furthermore, with respect to any content in which User has prior intellectual property rights, including User logos and other trademarks, User grants BFT a worldwide royalty free license to use and display such content on the BFT Platform and affiliated websites. All other logos, designs, trade dress, and data contained on or accessed through the BFT Platform are the exclusive property of BFT.
18. Consent
Without limiting any of the foregoing provisions, by using the BFT Platform, User hereby consents to and agrees to be bound by all the Terms and acknowledges that User's license is consideration for User's consent and agreement. User's continued use of BFT Platform subsequent to any change in or amendment to these Terms shall constitute acquiescence, agreement, and consent to any new or different terms.