Terms and Conditions
General Terms & Conditions
Agreement with Terms
By using this website or working with our employees or agents by any means (including telephone, text, email, chat, or any other mechanism), you accept our Agreement. We reserve the right to make changes to our website, our services, and the Agreement at any time. Your use of our services after any changes have been made constitutes acceptance of the changes.
Ownership and Use of Website, Copyright, and Trademarks
This website is the sole property of Curbside Kitchen or our affiliates, partners, or content suppliers and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all content on this website, the content, and all software used on this website, are the exclusive property of Curbside Kitchen or our affiliates or partners and are protected by U.S. and international copyright laws. Title to any part of this property shall not pass to you or to any other person or entity.
This website, compilation, content, and software may only be used as a personal e-commerce resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, sale, resale, unauthorized use, or other exploitation of any part of the website, compilation, content, and software without express prior written permission from Curbside Kitchen is strictly prohibited, may violate copyright, trademark and other laws, and may result in your being responsible for any and all associated damages. The application or linking of this website, compilation, content or software into any other website, compilation, content or software is also strictly prohibited without express prior written permission from Curbside Kitchen.
CurbsideKitchen.com, the Curbside Kitchen logo, and certain other product or service names referenced are trade or service marks of Curbside Kitchen. Certain product, company, or service names referenced are trade or service marks of their respective owners. None of these marks may be used in connection with any product or service different from that correctly associated with the mark, in any manner that disparages or discredits the mark's owner, or in any manner that is likely to cause confusion.
Curbside Kitchen and our affiliates and partners reserve the right to refuse service, terminate accounts, and/or modify or cancel orders at our discretion, for any cause or without cause.
Ownership of Certain Information
If you post names of, reviews of, or comments on products or companies on Curbside Kitchen's website, you grant Curbside Kitchen and our affiliates and partners a non-exclusive, royalty-free, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such names, reviews and comments throughout the world in any media. You also grant Curbside Kitchen and our affiliates and partners the right to use the name (if any) that you submit with any name, review or comment in connection with such review or comment.
If you allow us to post your menu, pricing, logo, or other information on our website, you grant Curbside Kitchen and our affiliates and partners a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such menu, pricing, logo, or other information throughout the world in any media, subject to our usage of your trade or service marks as specified elsewhere in these Terms.
Our services and websites may contain links to third-party services such as third-party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left our services. We do not control and are not responsible for any third party links that may be in our services. We provide these third-party links only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products, or services accessible through such links. Your use of all third-party links is at your own risk.
You acknowledge and agree that the availability of our mobile application (“Application”) is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that our Agreement is between you and Curbside Kitchen and not with the App Store. Curbside Kitchen, not the App Store, is solely responsible for our services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with our services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using our services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of our Agreement and will have the right to enforce them.
With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. In addition, the following terms apply to any App Store Sourced Application:
You acknowledge and agree that (i) our Agreement is concluded between you and Curbside Kitchen only, and not Apple, and (ii) Curbside Kitchen, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Curbside Kitchen and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Curbside Kitchen.
You and Curbside Kitchen acknowledge that, as between Curbside Kitchen and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.
You and Curbside Kitchen acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Curbside Kitchen and Apple, Curbside Kitchen, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by our Agreement.
You and Curbside Kitchen acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of our Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of our Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce our Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of our Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
Risk of Loss; Guarantee
All services purchased through Curbside Kitchen are made pursuant to a fulfillment agreement with one or more third parties (such as food providers, property managers, property owners, or delivery companies). Should there be errors, Curbside Kitchen will offer every reasonable assistance in the correction of that error. In any event, however, the risk of loss and title for such services pass to you upon our conveyance of your services to the third party/ies. It may be necessary for you to file claims with those parties.
You and your employer (if any) agree to indemnify and hold Curbside Kitchen, our subsidiaries, affiliates, officers, agents, and other partners and employees harmless from any loss, liability, damage, claim, or demand, including reasonable attorneys' fees, made by any party due to or arising out of (a) your use of this website or any Curbside Kitchen services in any way, or (b) your fulfillment or attempted fulfillment of any orders sent to you by Curbside Kitchen, or (c) any other engagement or attempted engagement with Curbside Kitchen.
CURBSIDE KITCHEN AND THIS WEBSITE ARE PROVIDED BY CURBSIDE KITCHEN ON AN "AS IS" BASIS. CURBSIDE KITCHEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS WEBSITE OR THE INFORMATION, CONTENT, MATERIALS, SOFTWARE, OR PRODUCTS INCLUDED IN THIS WEBSITE OR CONVEYED IN CURBSIDE KITCHEN. TO THE MAXIMUM EXTENT PERMISSIBLE, CURBSIDE KITCHEN DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CURBSIDE KITCHEN WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR ITS SERVICES, OR FROM PRODUCTS OR SERVICES ACQUIRED THROUGH THIS SITE OR THROUGH ITS SERVICES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. CURBSIDE KITCHEN WILL NOT BE LIABLE FOR ANY BODILY INJURY, ILLNESS, DEATH OR PROPERTY DAMAGE ARISING OUT OF OR RELATED TO THE PERFORMANCE OF ANY PARTY IN CONNECTION WITH ANY SERVICE ARRANGED BY CURBSIDE KITCHEN.
Curbside Kitchen disclaims any and all liability for the acts, omissions, and conduct of any users, third parties, third-party users, Curbside Kitchen users, advertisers and sponsors on the website, in connection with the website or Curbside Kitchen, or otherwise related to use of the website or Curbside Kitchen. Curbside Kitchen is not responsible for the products, services, actions, or failure to act of any third party. Without limiting the foregoing, you may report any believed misconduct to Curbside Kitchen at [email protected] Curbside Kitchen may investigate and handle your claim, at our sole discretion.
Curbside Kitchen reserves the right to limit services and service quantities.
Pricing on this site is subject to change without notice.
No Agency Relationship
You agree that we are not responsible for any information you convey, in any manner, and that we have no control over any actions you take or statements you make. You agree that you and we are independent contractors, and that neither you nor we are in any way an agent for the other party.
You may not use the Curbside Kitchen website or our services if you are under eighteen years of age.
The laws of Virginia will govern these notices, terms, and conditions, without regard to the conflict of law principles.
FOOD TRUCK Specific Terms and Conditions
https://www.curbsidekitchen.com(“Website”) and use the System application made available for download from the Website (“Application”).
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, and of other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1.1.Term. Unless earlier terminated as provided herein, the term of this Agreement shall begin on the Effective Date and shall continue in effect thereafter.
1.2.Termination. Either party may terminate this Agreement without cause by providing the other party thirty (30) calendar days’ written notice of such intent to terminate. Curbside may terminate this Agreement immediately upon the material breach by Provider of this Agreement by express notice to Provider of such termination.
2.1.Start. Starting on the Effective Date, Provider shall perform its responsibilities described in this Agreement (“Services”).
2.2.Access. Provider shall connect to Curbside’s Website, supply all requested information, complete all application forms, accept all applicable responsibilities and create a user name and password including without limitation, submitting copies of Provider’s driver license and insurance required under this Agreement.
2.3.Logistics. The System shall provide Leads to Provider with information such as the name of the Property address, arrival time, departure time, and other similar information (“Logistics”).
2.4.Bookings are Binding. EachBooking issued by Curbside is a legally binding Provider requirement and one of Provider’s material obligations under this Agreement. Provider shall perform the Service and complete the Bookings in accordance with the Logistics.
2.5.Electronic Communications. Except for executing this Agreement, all communications shall be conducted by e-mail, text messaging, telephone calls, notices on the Website, and other similar techniques unless otherwise approved by Curbside.
3.COSTS AND PAYMENT
3.1.Event Fee. The System shall determine the amount of the fee Provider shall pay Curbside, if any, in order to confirm an event and use of the System based on a number of factors (“Event Fee”).
3.2.Payment. The System shall charge Provider’s credit card, and Provider shall pay, the Event Fee to Curbside immediately and automatically upon Acceptance of Provider’s Offer.
3.3.No Refunds. In the event a Booking is canceled due to Provider and unless otherwise agreed to by Curbside, Provider shall not be entitled to a refund of the Event Fee and Curbside shall not be obligated to refund any portion of the Event Fee.
3.4.Costs. Provider shall be responsible for all costs and expenses arising from its responsibilities under this Agreement.
4.1.Works. “Works” means the System together with: (i) any suggestions, feedback or other comments by Provider about the System; and (ii) any creative or imaginative inventions, discoveries, ideas, works, mask works, designs, art, marks, symbols, brands, names and similar intangible original assets (whether or not protectable with intellectual property rights) in any audible, physical, electronic or intangible form and together with the documentation, materials and media on which it is manifested, memorialized, reduced and stored, including without limitation creative or imaginative computer programs, applications, software (in online, source code and object code forms), data, databases, documentation, trade secrets, know-how, concepts, techniques, methods, processes, specifications, operating instructions, notes, technical drawings, designs, templates, interfaces, utilities and tools arising from this Agreement and all updates, modifications, improvements, enhancements and derivatives thereto.
4.2.Ownership. Except as expressly stated herein, Curbside owns all rights, title, and interests in the Works related to the System developed or acquired under or independently from this Agreement together with all related trademarks, goodwill, copyright, patent, and other intellectual property rights (“SystemIP”). System IP includes the System, applications, software, and data used by Provider to access System and provide the Services.
(a)Curbside hereby grants Provider a limited, revocable, royalty-free, non-exclusive, non-sublicensable, non-transferable license during this Agreement to use the System IP in the United State as contemplated by this Agreement.
(b)Provider shall not: (i) create any derivatives of or new intellectual property that is similar to the System IP (“New IP”); (ii) use the System IP in a way that impairs its validity or enforceability; or (iii) use the System IP with any other service or product without Curbside’s express prior approval.
(c)Provider hereby unconditionally assigns to Curbside any and all rights, title and interests in any New IP and shall cause its personnel to do the same.
5.CONFIDENTIALITY, USE OF INFORMATION AND PRIVACY
5.1.General. “Confidential Information” means any information provided in connection with or arising out of this Agreement that includes: (i) the business or matters of Curbside or its affiliates, suppliers, licensors or clients; (ii) Curbside’s System, software, applications, techniques, business methods, contractors, affiliates, products, services, technology, trade secrets, technical procedures, methodologies or proprietary rights; and (iii) Provider’s personally identifiable information, financial information, username and password. In addition, “Confidential Information” includes any other information, data or materials which have been or will be furnished by or through Curbside (or its affiliates, clients, agents or suppliers) and identified as “Confidential”, “Proprietary”, or other similar marking, or which, under all of the circumstances, ought reasonably to be treated as confidential and/or proprietary.
5.2.Use of Confidential Information. Each party (i) shall use Confidential Information only in connection with performance of this Agreement; (ii) may use the Confidential Information to grow and improve the Service; and (ii) shall not disclose Confidential Information except to its employees and contractors who have first agreed to be bound by the terms and conditions of this Article 5 and who have a need to know such Confidential Information.
5.3.Term of Confidentiality Obligations. The confidentiality obligations set forth herein shall continue and shall survive any termination or expiration of this Agreement.
5.4.Security. Each party shall take the necessary measures, including the measures that such party takes to protect its own confidential data: (i) to preserve the security of the Confidential Information; (ii) to prevent unauthorized access to or unauthorized modification of any Confidential Information; and (iii) to establish and maintain environmental, safety, facility and data security procedures and other safeguards against destruction, loss, alteration or theft of, or unauthorized access to, any Confidential Information.
5.5.Return of Materials. Each party shall promptly deliver to the other party or certify the destruction, upon any expiration or termination of this Agreement and at any other earlier time requested, all Confidential Information of such party.
6.1.Insurance. Provider shall maintain, at its sole cost and expense, the following insurance coverage during the term of this agreement:
(a)Commercial General Liability insurance on an occurrence coverage basis against claims for bodily injury, death, and property damage (including loss of use), personal injury, and advertising injury, at least as broad as the 1986 (or later) Insurance Services Office Commercial General Liability Policy form CG 0001 ©, current edition occurrence form.
(1)$1,000,000 Per Occurrence
(2)$2,000,000 General Aggregate
(3)$2,000,000 Products/Completed Operations Aggregate
(4)$1,000,000 Advertising and Personal Injury
(5)$5,000 Medical Payments
(b)Vehicle Liability insurance covering liability arising from the use or operation of any motorized vehicle, including those owned, hired or otherwise operated or used by or on behalf of the Provider (including non-owned vehicles). The coverage shall be at least as broad as the Insurance Services Office Business Automobile Policy form CA 0001 ©, current edition.
(1)$1,000,000 Combined Single Limit
(c)Workers' Compensation as is required by statute or law in the jurisdiction of all operations, or as may be available on a voluntary basis. Employer’s Liability insurance with a limits as follows:
(1)$500,000 per Disease
(2)$500,000 each Accident
(3)$500,000 each Employee
(d)Umbrella or Excess Liability insurance providing at least excess limits over Commercial General Liability, Vehicle Liability, and Employer’s Liability policies. Such insurance shall be on an occurrence basis in excess of the underlying insurance described above and shall be at least as broad as each and every one of the underlying policies and shall schedule Commercial General Liability, Vehicle Liability, and Employer’s Liability policies and shall be written in accordance and shall be at least as broad as the underlying policies.
(1)$1,000,000 per Occurrence
(e)Provider shall provide Curbside with evidence of General Liability and Vehicle Liability insurance prior to the start of work. All required coverage must be evidenced on the certificate of insurance and have Curbside Kitchen, LLC listed in the rider.
6.2.Additional Insurance Requirements.
(a)The required insurance shall contain the following additional provisions:
(1)Additional Insured – Curbside, the owners and Managers of the Properties, their employees in the scope of employment, licensees, invitees, successors and assigns, parents, subsidiary, related and affiliated entities (“Property Parties”) shall be listed as an additional insured on Provider’s Commercial General Liability, Vehicle Liability, Umbrella or Excess Liability as respects claims or liabilities arising from, or connected with Provider’s service, operations and completed operations. The additional insured endorsements shall be at least as broad as the current editions of the Insurance Services Offices forms CG 20 10 and CG 20 37.
(2)Primary Coverage – Provider’s required insurance coverage shall be primary insurance, and any insurance or self-insurance maintained by any additional insured or indemnified party shall be excess of and non-contributory with Provider’s insurance.
(3)Severability of Interest - Except with respect to the limits of insurance, Provider’s required insurance shall apply separately to each insured or additional insured.
(4)Waiver of Subrogation – Provider agrees to procure from its insurers waivers of subrogation against Property Parties and Provider shall cause each of its employees, agents, personnel, affiliates and subcontractors providing any portion of the Services (“Provider Parties”) to waive all their rights of subrogation against Property Parties for all costs or expenses, losses, damages, claims, suits or demands, howsoever caused.
(5)All Provider Parties are subject to the same insurance requirements as required of the Provider for Commercial General Liability, Vehicle Liability and Worker’s Compensation coverage.
6.3.Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of not less than A- VII, unless otherwise approved in writing by Curbside.
6.4.Waiver of Subrogation. Provider hereby waives all rights of recovery or subrogation against Provider Parties . All insurance policies required under this agreement shall contain a waiver of subrogation in accordance with this agreement.
7.REPRESENTATIONS, WARRANTIES AND INDEMNITIES
7.1.Mutual Representations. Each party covenants, represents and warrants to the other as follows:
(a)It has full power to enter into this Agreement and carry out its obligations under this Agreement.
(b)It shall not violate any federal, state or local laws, regulations or ordinances or any third party agreements by entering into this Agreement.
7.2.Provider Representations. Provider covenants, represents and warrants to Curbside as follows:
(a)Provider shall not attempt to reverse compile, reverse engineer or in any way investigate the inner workings of the System including without limitation any associated computer program, object code, software, firmware, microcode or product it gains access to under this Agreement.
(b)The devices Provider uses to access the System are fully functional as required herein and ensure for the automated receipt and confirmation for each Booking.
(c)Provider is at least 18 years old and has the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement.
(d)Provider shall not allow any other party to have, access or use its username and password.
(e)Provider possess valid driver’s licenses and are authorized and medically fit to operate the food trucks.
(f)Provider has all appropriate licenses, approvals and authority to provide the Services.
(g)Provide the Services in accordance with all applicable laws, rules, and regulations (including all applicable Food and Drug Administration regulations and other food, health, safety, and labor laws, rules, and regulations).
(h)Provider shall comply with all United States immigration laws, including the Immigration Reform and Control Act of 1986 (IRCA).
(i)Properly verify the identity and eligibility for work within the United States of all Provider personnel and, if requested by Curbside or a Customer, within (3) days of receipt of such request, provide sufficient documentation to evidence Provider’s compliance with this Section 7.2 (h).
(j)Provider owns or has the legal right to operate the vehicle used to provide the Services.
(k)Such vehicles are in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind.
(l)Provider shall only provide Services using vehicles that have been reported to and approved by Curbside and for which a photograph of such vehicle has been provided to Curbside.
(m)Provider maintains a wireless data plan with sufficient usage limits needed to perform under this Agreement.
(n)Provider shall not perform passenger transportation services.
(o)Provider shall not engage in reckless behavior while driving, drive unsafely, operate a vehicle that is unsafe to drive, permit an unauthorized party to accompany you in the vehicle while providing Services, provide Services while under the influence of alcohol or drugs or do anything that might harm the safety and reputation of Curbside and the Properties.
(p)Provider agrees that Curbside may obtain information about Provider and its personnel, including financial, criminal and driving records, and shall provide any assistance and authorizations to facilitate access to such records.
(q)Provider shall pay all applicable federal, state and local taxes based on Provider’s provision of Services and any payments received by Provider.
(r)COVID 19. Provider shall, and shall cause all Provider employees, agents, personnel, affiliates, subcontractors and any other parties providing any portion of the Services on Provider’s behalf (“Provider Personnel”) to: (a) wear appropriately protective gloves and a clean cloth face covering or mask at all times while at any event for any Customer (which cannot be shared with anyone else); (b) comply in all respects with applicable federal, state, local or other laws and regulations relating to employee and food safety and health; and (c) follow in all respects relevant recommendations and guidance from the Occupational Safety and Health Administration (OSHA), the Center for Disease Control (CDC) and any federal, state, local, or other relevant health or workplace safety department or agency to ensure the safety and health of Provider Personnel, customers and third parties during the COVID-19 pandemic.
(s)Provider shall not at any time use the System, or at any time while traveling to, during or traveling from a Booking, to:
(1)Reverse engineer, decompile, share, copy, modify, develop derivative works, sublicense, transfer, assign, distribute, display, perform or improperly use the System or System IP.
(2)Rent, lease, lend, sell or license the System or System IP.
(3)Frame or mirror any part of the System.
(4)Use any application or technique to copy retrieve, index, scrape or mine the data and information available on the System.
(5)Circumvent the navigational structure or presentation of the System.
(6)Link the Website to or from any other internet location.
(7)Violate any law, statute, rule, permit, ordinance or regulation.
(8)Use the System or System IP in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy.
(9)Interact with the System in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing or illegal.
(10)Carry or use any item which primary purpose was designed to be a weapon.
(11)Impersonate as any party or disguise your true identity or the source of information.
(12)Interfere with or disrupt the System or its users.
(13)Discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation.
(14)Stalk, threaten or otherwise harass any person.
(15)Facilitate any third party to conduct the restricted activities above.
7.3.Waiver. Provider acknowledge and agrees that Curbside shall not be responsible for: (i) any inaccurate or incomplete information; or (ii) acts or omissions by Curbside or its affiliates. Provider acknowledge and agrees that Provider shall comply with the various government agencies and regulations for the licensing, inspection and ongoing compliance with any applicable federal, state and local laws and regulations; including without limitation, in regards to food sales and safety requirements (“Laws”). PROVIDER HEREBY WAIVES AND RELEASES CURBSIDE FROM ANY AND ALL LIABILITY ARISING FROM ANY ACTS OR OMISSIONS RELATED TO SUCH LAWS INCLUDING WITHOUT LIMITATION, IN REGARDS TO COMPLIANCE WITH LAWS.
7.4.Indemnity. Provider shall defend, indemnify and hold harmless Curbside and its officers, directors, employees, contractors, agents, affiliates, successors and assigns (“Indemnified Parties”) from and against all third party claims, losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or related to this Agreement, except if such claims are due to Curbside’s gross negligence or Curbside’s intentional breach of this Agreement.
8.LIABILITY LIMITS AND DISCLAIMERS
8.1.Amount. UNDER NO CIRCUMSTANCE SHALL CURBSIDE HAVE ANY LIABILITY WHATSOEVER FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT IN AN AGGREGATE AMOUNT IN EXCESS OF THE ACCESS FEES PAID BY CURBSIDE TO PROVIDER. THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE AND AGREE THAT SAID LIABILITY AMOUNT IS REASONABLE. THE LIMITATION OF LIABILITY IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES HEREUNDER AND OTHER TORTS), OR ANY OTHER LEGAL OR EQUITABLE GROUNDS.
8.2.Type. UNDER NO CIRCUMSTANCE SHALL CURBSIDE HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS REVENUE, GOODWILL OR ANTICIPATED SAVINGS) HOWEVER CAUSED, EVEN IF FORESEEABLE, WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) OR THE FAILURE OF AN ESSENTIAL PURPOSE.
8.3.Disclaimer. The following disclaimers are made on behalf of Curbside, its affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, owners and shareholders.
(a)Provider does not provide transportation services and is not a transportation carrier, common carrier or public carrier.
(b)THE SYSTEM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. CURBSIDE DOES NOT GUARANTEE AND OR PROMISE, (AND DISCLAIMS ALL LIABILITY REGARDLESS OF THE FORM OF ACTION RELATED TO): (I) ANY SPECIFIC RESULTS FROM USE OF THE SYSTEM; (II) THAT PROVIDER WILL RECEIVE LEADS OR BOOKINGS; (III) THAT THE SYSTEM WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE, MEET PROVIDER EXPECTATIONS, VIRUSES FREE OR WILL HAVE DEFECTS CORRECTED; (IV) THE IDENTITY, SAFETY OR ANYTHING ELSE IN REGARDS TO PROPERTY OR MANAGER; (V) THE ACTS OR OMISSIONS OF ANY OTHER PARTY; AND (V) THAT ANY LOCATION DATA IS COMPLETELY ACCURATE. TO THE FULLEST EXTENT PERMITTED BY LAW, CURBSIDE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(c)Provider shall be solely responsible for its safety and security at the Property.
9.1.Independent Contractors. The relationship of Provider, food truck personnel and Curbside shall be that of independent contractors and not one of employment, joint venture or other relationship. All persons Provider furnishes to provide Services shall be the employees, affiliates or contractors of Provider and shall not be employees nor agents of Curbside. Provider shall supervises its personnel and controls whether or not to use the System, make an Offer, accept a Booking and the manner in which the Services are provided, subject to Provider’s compliance with Laws, Property rules and other requirements set forth herein.
9.2.Advertising. Curbside’s agrees that Provider may use the names, service marks and/or trademarks of Curbside, or reveal the existence of this Agreement, including in any advertising, publicity release or sales presentation.
9.3.Rules.Provider and Provider Party personnel, while working at or visiting the Properties, shall comply with all rules and regulations applicable to such Properties.
9.4.Agreement Binding; Assignment. Provider shall not assign any portion of this agreement. Any attempt to do so shall be void. Curbside may assign this Agreement to an affiliate or as part of a merger, acquisition or sale of a majority of Curbsides assets. This Agreement shall be binding upon and inure to the benefit of Curbside and its successors and assigns.
9.5.Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Maryland without reference to rules regarding conflicts of law. Any controversies, disputes and actions arising from this Agreement shall be bought in the state and federal courts located in the State of Maryland.
9.6.Notices. All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by either certified mail, return receipt requested, or hand delivery to the parties at the respective addresses set forth above.
9.7.Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each party agrees that such provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
9.8.Counterparts. This Agreement may be executed in counterparts, which together shall constitute one and the same agreement.
9.9.No Waiver; Cumulative Remedies. The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance shall continue in full force and effect. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
9.10.Entire Agreement and Amendments.
(a)This Agreement and the Statements of Work constitute the complete, final and exclusive statement of the terms of the agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions of the parties.
(b)No modification or rescission of this Agreement shall be binding unless: (i) executed in writing by both parties; or (ii) Curbside posts a new version of this Agreement on its Website and emails Provider of such update whereby the new version becomes effective upon the next time Provider access the Website or uses the System. This Agreement shall immediately terminate as provided herein in the event Provider does not agree with the new posted agreement or refuses such new terms.