TERMS & CONDITIONS
a. Acceptance of Terms. By accessing and/or using the Site, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site.
b. Amendment of Terms. GOMKT may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Site after such posting constitutes your consent to be bound by the Terms, as amended.
c. Additional Terms. In addition to these Terms, when using particular plans, offers, products, services or features, you will also be subject to any additional posted guidelines, or rules applicable to such plan, offer, product, service or feature, which may be posted and modified from time to time. All such additional terms are hereby incorporated by reference into the Terms, provided that in the event of any conflict between such additional terms and the Terms, the Terms shall control.
a. GOMKT Platform. GOMKT is an online platform that enables GOMKT members to purchase meals offered and prepared by restaurants, food service providers, and chefs that partner with GOMKT (“Merchants”). Through the GOMKT platform you can access third party products and services. GOMKT itself is not a restaurant, chef or food service provider and does not own, operate or control any of the restaurants, chefs, or food services facilities accessible through the Site.
b. You can purchase the available meals (“Meals”) through the Site once you create your Account. The payment will be handled by Stripe, and you must provide a current, valid, accepted method of payment to buy Meals.
c. GOMKT Meals. Merchants can sell their daily and fresh surplus food either by offering fixed, a la carte meal options (“Meal Options”) or by selling mix and match meal boxes (“Meal Box”), or other arrangements at the GOMKT and Merchant discretion. Once you place an order, you can choose your Meal Option or fill your Meal Box at the Merchant location according to its availability of surplus food for the day of the order.
d. Merchant and Meal Availability and Allocation. GOMKT makes no guarantee on the availability of particular Merchants, meals, menu choices or other inventory, and availability may change over time. GOMKT Merchants are able to manage the meals that they are offering on the Site. Modifications, substitutions and any other changes are permitted in order to adapt the orders to the surplus food available for each day.
e. Meal Ingredients. GOMKT makes no guarantee regarding the ingredients contained in any meal, and we are not legally liable for the ingredients therein. It is your responsibility to ensure that you can safely consume all of the ingredients contained in the meals purchased on the GOMKT Site.
f. The Merchants available on our Site operate independently and have entered into agreements with us to provide the food services available to you on the Site. The Merchants are required to comply with federal, state and local laws, rules, regulations, and standards pertaining to the preparation, sale and marketing of food, including food preparation and safety and menu disclosure; GOMKT is not responsible for the Merchants' food preparation or safety and does not verify any Merchants's compliance with applicable laws. In addition, GOMKT does not guarantee the quality of what the Merchants sell, nor does it guarantee the services provided by the Merchant. In addition, GOMKT does not independently verify representations made by Merchants regarding their food, including without limitation any menu or restaurant level descriptors or disclosures.
3.USE OF GOMKT; ELIGIBILITY; REGISTRATION INFORMATION AND PASSWORD;SITE ACCESS
a. Eligibility Criteria. You may only use the Site to order if you are the authorized holder of the credit card used for payment or an authorized user of a corporate account and if you are able to form a binding contract with us. In addition, if you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the Site, and your parent or legal guardian must read and agree to this Agreement prior to your using the Site. Notwithstanding the foregoing, you are prohibited from using the Site if you are under the age of 13.
THESE TERMS ARE ONLY APPLICABLE TO USERS IN THE U.S. AND SEPARATE TERMS APPLY TO USERS IN OTHER JURISDICTIONS. THE SITE IS NOT AVAILABLE TO ANY USERS SUSPENDED OR REMOVED FROM THE SITE BY GOMKT. BY USING THE SITE, YOU REPRESENT THAT YOU ARE A RESIDENT OF THE UNITED STATES WHO HAS NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE. THOSE WHO CHOOSE TO ACCESS THE SITE DO SO AT THEIR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL LOCAL RULES INCLUDING, WITHOUT LIMITATION, RULES ABOUT THE INTERNET, DATA, EMAIL OR OTHER ELECTRONIC MESSAGES, OR PRIVACY.
b. Account Information. Use of the Site to order requires that you register and/or create an Account ("Account"). To register and create an Account, you must create a password and provide certain personal information. In consideration of the use of the Site' services, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or GOMKT has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, GOMKT has the right to block your current or future use of the Site (or any portion thereof).
c. You are responsible for maintaining the confidentiality and security of your Account and password and for all activities or any other actions that occur under or are taken in connection with your password or Account. You agree to (a) immediately notify GOMKT of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. GOMKT will not be liable for any injury, loss or damage of any kind arising from or relating to your failure to comply with (a) and (b) or for any acts or omissions by you or someone else using your Account and/or password.
d. Your Account is personal to you and you agree not to create more than one Account. Members cannot transfer or gift meals to third parties, including other GOMKT members. GOMKT may not be used for commercial purposes.
e. Organizations Accounts. If you are using or opening an Account on behalf of a company, entity, or organization (a “Organization Account”), then you represent and warrant that you are an authorized representative of that Organization Account with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Organization Account.
f. To use your Account you must have access to the Internet. We continually update and test various aspects of the GOMKT platform. We reserve the right to, and by using our service you agree that we may, include you in or exclude you from these test without notice.
g. Should GOMKT offer user or merchant referral links and corresponding rewards in the future, we reserve the right to revoke credit balances for fraudulent usage of such links.
a. By purchasing a GOMKT Meal, you authorize us to charge you for the price of the Meal that is set by the Merchant. You also authorize us to charge you any other fees you may incur in connection with your use of the Site, such as any applicable sign-up fee, taxes, or processing fees as further explained below.
b. Our Credit Policy. Unless prohibited by law, in the event of any error in your order or the amount you were charged, you are entitled to a credit, provided it is brought to our attention within 15 days of your order date. If you do not raise the issue within 15 days of your order date, you waive the ability to receive a credit for any error.
c. Payment Methods. You may edit your Payment Method information through the GOMKT mobile application. If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, you nonetheless will remain responsible for any uncollected amounts. If we cannot charge your Account, we reserve the right, but are not obligated, to terminate your access to our Site or any portion thereof.
a. Fees we charge. Your GOMKT Meal fee covers your access to eligible meals as explained above. We reserve the right to change the policy regarding when we charge fees, to introduce additional fees (such as a sign up fee, late cancellation fee, or missed meal pick up fee) and to change the amount of any such fees at any time. Additionally, from time to time we may allow you to purchase additional meals, products or services through the GOMKT Site. If you choose to purchase any of these offerings, you will be responsible to pay the applicable fees in addition to the previous purchased Meals.
b. Third Party Fees for Using GOMKT. You are also responsible for all third party charges and fees associated with connecting and using the Site, including fees such as internet service provider fees, telephone and computer equipment charges, sales tax and any other fees necessary to access the Site. Taxes and fees.
c. Taxes and fees are charged on all GOMKT Meals in order to pay taxes to our Merchants partners and to cover other taxes and fees paid by GOMKT. In most cases, the taxes match those that one would pay at a merchant in the cities in which GOMKT is offered. These tax rates are currently as follows: New York: 8.875%, Boston: 7%, Miami: 7%, San Francisco: 9.5%, Chicago: 11.5%, Washington, DC: 10%, Philadelphia: 8%.
6.ORDER, PICK UP AND CANCELLATION OF MEALS
a. As a GOMKT member you must order and cancel your GOMKT meals only through the GOMKT website or mobile application. It is a breach of your Account terms if you cancel, change, or order a meal directly with a Merchant. Meals can be ordered only for the present day of the ordering. After placing an order, you will receive a confirmation by e-mail or find it at “Previously paid orders” in the GOMKT mobile application. It is important that you stick to the pickup time specified by the Merchant. The pickup time will normally be in a time period of 60-120 minutes before restaurant closes. Check the Merchant description, for details about when you can pick up your meal order at the Merchant. Be aware that if you arrive too late, the Merchant may be closed.
b. When you have arrived at the Merchant, show your QR code/receipt to the Merchant’s employees, after which you can claim your Meal Option.
c. Once you have submitted your Order and your payment has been authorized, you can only cancel your Order until 5 hours before pickup time. If you wish to cancel your Order, you need to contact GOMKT by emailing firstname.lastname@example.org, and GOMKT will inform the Merchant and refund your Order in credits.
d. If the 5-hour limit is not met you will not be entitled to cancel your Order, nor will you be entitled to a refund. If you do not pick up your order: If you do not pick up your order on time, GOMKT is entitled to sell the product to another party, without any liability to you. GOMKT will not refund completed Orders for late or missing pickup, nor will the Merchant.
e. Gifts and Promotions. From time to time we may make available gift cards for Meals, other types of promotions or promotional plans (including through the use of promotional codes or those provided as part of a third party promotion). Gift cards, promotions and promotional plans may be redeemed as described in the specifics of the promotion and may be subject to additional or different terms. Unless otherwise expressly communicated to you in connection with your redemption, gift cards, promotions and promotional plans are not transferable, can only be used once, cannot be redeemed for cash, and may not be combined with other offers and are void where prohibited. To be eligible for certain promotions, you must not have an existing Account.
7.TERMINATION OR MODIFICATION BY GOMKT
a. Termination or Modification. You understand and agree that, at any time and without prior notice GOMKT may (1) terminate, cancel, deactivate and/or suspend your user Account, any meals ordered, or your access to or use of the Site (or any portion thereof) and/or (2) discontinue, modify or alter any aspect, feature or policy of the Site or your Account. Upon any termination, we may immediately deactivate your Account and all related information and/or bar any further access to your Account information and the Site. If we determine that you have violated these Terms or otherwise engaged in illegal or improper use of the Site, you will not be entitled to any refund and you agree that we will not be responsible to pay any such refund. You agree that GOMKT will not be liable to you or any third party for any termination or modification to the service regardless of the reason for such termination or modification. You acknowledge that your only right with respect to any dissatisfaction with any modification or discontinuation of service made by us is to cancel or terminate your user Account.
b. Infringing or Fraudulent Activity. GOMKT does not permit copyright infringing activities and reserves the right to terminate access to the Site and remove all content submitted by any persons who are found to be in fringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies GOMKT may have at law or in equity.
9.YOUR CONTENT AND CONDUCT
a. User Conduct by accessing the Site, you agree:
- to comply with all applicable laws regarding online conduct and submission of acceptable User Content;
- not to use the Site or the services or submit content to the Site if you are under the age of 13;
- not to access the Site or services using a third-party's Account/registration without the express consent of the Account holder;
- not to attempt, through any means, to gain unauthorized access to any part of the Site and/or any service, other Account, computer system and/or network connected to any GOMKT server;
- not to attempt to impersonate another user or person;
- not to advertise, or solicit, any user to buy or sell any products or services, unless authorized by GOMKT;
- not to deep-link to the Site and/or access the Site manually and/or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy and/or monitor any portion of the Site and/or any Materials and/or other content on the Site, unless GOMKT has given you specific permission to do so in writing;
- not to conduct any kind of systematic retrieval of data or other content from the Site;
- not to create or compile, directly or indirectly, any collection, compilation, database or directory from the Site content;
- not to use the Site in any manner that could damage, disable, overburden and/or impair any GOMKT server, or the network(s) connected to any GOMKT server, and/or interfere with any other party's use and enjoyment of the Site;
- not to transmit any chain letters or junk email;
- not to use any information obtained from the Site or the GOMKT services in order to contact, advertise to, solicit, or sell to any user or merchant;
- not to sell or transfer your profile;
- not to use the Site to engage in commercial activities apart from sanctioned use of GOMKT services;
- not to use the Site as part of an effort to compete with GOMKT, the Site, or the GOMKT services;
- not to copy any content, including, but not limited to restaurant menu content and third-party reviews, for republication in any format or media;
- not to license, sell and/or otherwise provide access to and/or use of the Site to any third party, including without limitation to build a competitive product and/or service;
- not to create restaurant reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the Site;
- not to copy, publish or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
- not to harass, annoy, intimidate or threaten any GOMKT employees or agents engaged in providing any portion of GOMKT's services;
- not to display an advertisement, or accept payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Site or GOMKT's services on behalf of that person, such as posting blogs or bulletins with a commercial purpose;
- not to delete the copyright or other proprietary rights notice from any User Content or any portion of the Site or GOMKT's services;
- not to upload or transmit viruses or other harmful, disruptive or destructive files; - not to disrupt, interfere with, or otherwise harm or violate the security of the Site, or any services, system resources, Accounts, passwords, servers or networks connected to or accessible through the Site or affiliated or linked Site (including those of our restaurant partners); and
- not to use the Site for any illegal purposes.
You agree that the consequences of commercial use or re-publication of User Content or Materials from the Site or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy and that GOMKT will be entitled to temporary and permanent in junctive reliefto prohibit such use or activity, without the need to prove damages.
b. You grant GOMKT an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sub-licensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute and/or otherwise use User Content in connection with GOMKT's business and in all forms of media now known or hereafter invented (collectively, the "Uses"), without notification to and/or approval by you. You further grant GOMKT a license to use your username and/or other user profile information, including without limitation, your ratings history and how long you have been a GOMKT diner, to attribute User Content to you in connection with the Uses, if we choose to do so, again without notification to and/or approval by you. Further, if you provide any suggestions, input or other feedback relating to the Site or the services we provide, GOMKT shall have the right to freely and fully exercise and exploit such content in connection with its business, without notice to, approval by or compensation to you.
c. User Content transmitted to certain parts of the Site, including, without limitation, restaurant pages and certain Interactive Areas, may be posted in public areas on our Site, including without limitation in a compilation format, and as such will be publicly visible and accessible. GOMKT and its officers, directors, employees, parents, subsidiaries, affiliates, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the "Released Parties") will not be responsible for, and you hereby expressly release the Released Parties from, any and all liability for the action of any and all third parties with respect to User Content.
d. By transmitting User Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the Site. We do our best to encourage civility and discourage disruptive communication on the Site. We also discourage communications that incite others to violate our standards. We expect your cooperation in upholding our standards. You are responsible for all of your User Content. You agree not to provide any User Content that:
- is unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another's privacy, hateful, and/or racially, ethnically and/or otherwise objectionable;
- as a commercial,political or religious purpose;
- is false, misleading and/or not written in good faith;
- fringes any atent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or enity;
- is illegal and/or promotes illegal activity;
- contains unauthorized advertising and/or solicits users to a business other than those on the Site;
-and/or is intended to terrupt, destroy or limit the functionality or integrity of any computer software, hardware or Materials on the Site or other webSite .
e. GOMKT may monitor any and all use of the Site; however, we are under no obligation to do so. We may manage the Site in a manner intended to protect our property and rights and to facilitate the proper functioning of the Site. If any User Content or conduct on our Site violates our standards, or any other terms and conditions of this Agreement; or interferes with other peoples' enjoyment of the Materials or our Site; or that we believe is inappropriate; in our sole judgment, we reserve the right to change, delete or remove, in part or in full, any such User Content or Materials; and we further reserve the right to terminate or suspend access to any Interactive Areas or any Site. GOMKT will cooperate with local, state and/or federal authorities to the extent required by applicable law in connection with User Content.
10.USER SUBMISSIONS OF REVIEWS
a. General. The Site provides certain features which enable you and other users to submit, post, and share reviews. These submissions may include without limitation text, graphic and pictorial works, or any other content submitted by you and other users through the Site (“User Submissions”). User Submissions are displayed for informational purposes only and are not controlled by GOMKT. GOMKT cannot guarantee any anonymity or confidentiality with respect to any User Submissions, and strongly recommends that you think carefully about what you upload to the Site. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not GOMKT, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit, or otherwise make available through the Site.
b. Right to Remove or Edit User Submissions. GOMKT makes no representations that it will publish or make available on the Site any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Site, or to edit or remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, GOMKT complies with the Digital Millennium Copyright Act, and will remove User Submissions upon receipt of a compliant take down notice (see the “Digital Millennium Copyright Act” section below).
c. License Grant by You to GOMKT. You retain all your ownership rights in original aspects of your User Submissions. By submitting User Submissions to GOMKT, you hereby grant GOMKT and its affiliates, sublicensees, partners, designees, and assignees of the Site (collectively, the “GOMKT Licensees”) a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, translate, prepare derivative works of, publicly display, publish, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the Site and GOMKT’s (and its successors’) business, including, without limitation, for marketing, promoting, and redistributing part or all of the Site (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed.
d. User Submissions Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize GOMKT to use all patent, trademark, copyright, or other proprietary rights in and to your User Submissions to enable inclusion and use of your User Submissions in the manner contemplated by GOMKT and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, GOMKT’s or any GOMKT Licensee’s use of such User Submissions pursuant to these Terms, and GOMKT’s or any of GOMKT Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) cause injury to any other person; (c) violate these Terms or any applicable law or regulation; or (d) require obtaining a license from or paying fees or royalties to any third party for the exercise of any rights granted in these Terms, including, by way of example and not limitation, the payment of any royalties to any copyright owners, including any royalties to any agency, collection society, or other entity that administers such rights on behalf of others. GOMKT may, but is not obligated to, monitor and edit or remove any activity or content, including but not limited to content that GOMKT determines in its sole discretion to be violative of the standards of this Site. GOMKT takes no responsibility and assumes no liability for any User Submissions.
e. Inaccurate or Offensive User Submissions. You understand that when using the Site, you may be exposed to User Submissions from a variety of sources and that GOMKT does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST GOMKT WITH RESPECT THERETO.
f. Feedback. If you provide GOMKT with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Site (“Feedback”), GOMKT shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Site. You hereby grant GOMKT a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
As a condition of your use of the Site, you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner that, in our sole discretion, could damage, disable,overburden, or impair it or interfere with any other party’s use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site, or any part of the Site, other Accounts, computer systems or networks connected to the Site, or any part of them,through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site. You may not remove, circumvent,disable, damage or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforcelimitations on the use of the Site or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site. You agree neither to modify the Site in any manner or form, nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site. The Site may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
GOMKT reserves the right to refuse service, terminate Accounts, remove or edit content,or cancel orders in their sole discretion.
12.OWNERSHIP; PROPRIETARY RIGHTS
The GOMKT website and mobile applications are owned and operated by GOMKT. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software),services, and all other elements of the Site provided by GOMKT(“Materials”) are protected by the copyright, trade dress,patent, and trademark laws of the Unites States and other countries,international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for anycontent uploaded by you, all Materials contained on the Site are the copyrighted property of GOMKT or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to GOMKT or its affiliate sand/or third-party licensors. Except as expressly authorized by GOMKT, you agree not to sell, license, distribute, copy, modify,publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
13.THIRD-PARTY Site, PRODUCTS AND SERVICES; LINKS
The Site may include links or access to other web Site or services (“Linked Site”)solely as a convenience to users. GOMKT does not endorse any such Linked Site or the information, material, products, or services contained on other linked Site or accessible through other Linked Site. Furthermore, GOMKT makes no express or implied warranties with regard to the information, material, products, or services that arecontained on or accessible through linked Site. ACCESS AND USE OF LINKED Site, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED Site OR AVAILABLE THROUGH LINKED Site, IS SOLELY AT YOUR OWN RISK.
Your correspondence or business dealings with, or participation in promotions of,advertisers found on or through the Site are solely between you and such advertiser. YOU AGREE THAT GOMKT WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.
Except as explicitly stated otherwise, legal notices will be served, with respect to GOMKT, on GOMKT national registered agent, and, with respect to you,to the email address you provide to GOMKT during the registration process. Notice will be deemed given 24 hours after email is sent,unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case,notice will be deemed given three days after the date of mailing.
15.DISCLAIMERS; NO WARRANTIES MEALS, AND OTHER NON-GOMKT PRODUCTS AND SERVICES OFFERED VIA THE SITE ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT GOMKT. YOUR COLLECTION AND USE OF THESE MEALS AND YOUR USE OF THESE NON-GOMKT PRODUCTS AND SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL GOMKT BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A MEMBER’S VISIT TO A MERCHANT, A MEMBER’S USE OF OR CONSUMPTION OF A MEAL, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE SITE, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH THE SERVICES. GOMKT IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.
THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDED “ASIS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GOMKT, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND PARTNERS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY,EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
WITHOUT LIMITING THE FOREGOING, GOMKT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS (I)THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED,OR THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE SITE IS ATYOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
16.WAIVER AND RELEASE You understand that GOMKT is not a restaurant or food provider or other service provider and the meals you consume are sourced and prepared by the applicable Merchant and not by GOMKT. Although GOMKT endeavors to offer inventory that is of high quality, GOMKT is not responsible for the quality of any meals or service.
Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless GOMKT, its parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees,consultants, contract employees, representatives and agents, and each of their respective successors and assigns, from any and all responsibility, claims, actions, suits, procedures, costs, expenses,damages and liabilities arising out of or in any way related to your participation in or use of your Account, including with respect to bodily injury, physical harm, illness, death or property damage.
Section 1542 of the California Civil Code provides that:
"A general release does not extend to claims which the party does not know or suspect to exist in his or her favor at the time of executing this release, which if known by him or her must have materially affected his settlement with the other party.
"YOU HEREBY EXPRESS LYWAIVE ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (or any statute of like effect in the jurisdiction in which you are located).This waiver extends to and includes any and all claims, liabilities,injuries, damages, and causes of action that the parties do not presently anticipate, know, or suspect to exist, but that may develop, accrue, or be discovered in the future.
17.INDEMNIFICATION; HOLD HARMLESS You agree to indemnify and hold GOMKT, its affiliated companies, and its suppliersand partners harmless from any claims, losses, damages, liabilities,including attorneys’ fees, arising out of your misuse of the Site,violation of these Terms, violation of the rights of any other personor entity, or any breach of the foregoing representations,warranties, and covenants.
18.LIMITATION OF LIABILITY AND DAMAGE SUNDER NO CIRCUMSTANCES WILL GOMKT OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES,AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF GOMKT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, GOMKT’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
GOMKT LIABILITY TO YOU IS LIMITED TO $50 OR THE AMOUNTS, IF ANY, PAID BY YOU TO GOMKT UNDER THIS AGREEMENT IN THE THREE MONTHS IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER GOMKT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
PLEASE READ THE FOLLOWING CAREFULLY:
a. Purpose. This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and GOMKT. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. You have the right to opt-out of this Arbitration Agreement (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Arbitration Agreement carefully. It provides that all disputes between you and GOMKT shall be resolved by binding arbitration.Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others(including, but not limited to, class actions). Except as otherwise provided, entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose oft his Arbitration Agreement, “GOMKT” means GOMKT and its parents,subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute”means any dispute, claim, or controversy between you and GOMKT regarding any aspect of your relationship with GOMKT, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement,negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute”is to be given the broadest possible meaning that will be enforced.
WE EACH AGREE THAT,EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE,WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
b. Pre-Arbitration Dispute Resolution. For all Disputes, whether pursued in court or arbitration, you must first give GOMKT an opportunity to resolve the Dispute. You must commence this process by mailing written notification to GOMKT, Legal Department, 173 W. 78th Street, Apt. 10D, New York, NY 10024. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If GOMKT does not resolve the Dispute to your satisfaction within 60 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
c. Exclusions From Arbitration And Your Right To Opt Out. Notwithstanding the above, you may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court in your state of residence; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 15 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Arbitration Agreement by mailing written notification to GOMKT, Legal Department, 173 W. 78th Street, Apt. 10D, New York, NY 10024. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with GOMKT through arbitration. Your decision to opt-out of this Arbitration Agreement will have no adverse effect on your relationship with GOMKT. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
e. Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
f. Location of Arbitration. You may initiate arbitration in either New York, NY, or in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution. In the event that GOMKT initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution.
g. Payment of Arbitration Fees and Costs. GOMKT will pay half of the arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law.
h. Class Action Waiver. Except as otherwise provided in this Arbitration Agreement, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and GOMKT specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this Arbitration Agreement as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other Member of GOMKT and/or user of GOMKT services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding without having complied with the opt-out requirements above.
i. Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and GOMKT are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and GOMKT might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, you give up those rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
j. Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable and the Dispute will be decided by a court.
k. Continuation. This Arbitration Agreement shall survive the termination of your contract with GOMKT and your use of the GOMKT Site and services.
a. Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of New York, without regard to conflict of law provisions. You agree that any claim or dispute you may have against GOMKT must be resolved by a court located in New York, except as otherwise agreed by the parties or as described in the Arbitration Agreement paragraph above. You agree to submit to the personal jurisdiction of the courts located within New York, New York for the purpose of litigating all such claims or disputes.
b. Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees.
c. Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
d. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
e. Entire Agreement. These Terms and any applicable Additional Terms, as each may be amended as set forth herein, are the entire agreement between you and GOMKT relating to the subject matter herein.
f. Claims; Statute of Limitations. YOU AND GOMKT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g. Disclosures. The services here under are offered by GoMkt LLC, Inc, located at: 173 W. 78th Street, Apt. 10D, New York, NY 10024 and email: email@example.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
h. Waiver. No waiver of any of these Terms by GOMKT is binding unless authorized in writing by an executive officer of GOMKT. In the event that GOMKT waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of GOMKT to enforce the same at a later time.