The Usual, Inc. (“The Usual,” “we,” or “us”) hereby makes the contents of its website (located at www.usual.com), smartphone applications, services provided therein, and software provided on or in connection with these services (collectively the “Service”) available according to this Terms of Service Agreement (“Agreement”). By accessing or using the Service, you signify that you have read, understood, and agree to be bound by this Agreement, whether or not you are a registered user of our Service. This Agreement applies to all visitors, registered users, and others who access the Service (“Users”).
We reserve the right to amend this Agreement at any time by notifying you as provided in this Agreement, provided that no notice shall be required for non-substantive changes to the Agreement. If wesubstantively amend this Agreement and you are unwilling to agree to the revised Agreement in its entirety you must cease to use all aspects of the Service, and terminate your user account if you previously created one. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service as a whole; no term is negotiable or excisable.
The Usual has incorporated each participating restaurant’s menu and pricing information into the Service to the best of its ability and knowledge. Any restaurant participating with The Usual has agreed that the prices listed on the Service will not exceed such restaurant’s in-store prices at the same moment in time, but The Usual shall not be liable for any discrepancies. The Usual makes no guarantees regarding the availability of a specific menu item at any given time. You acknowledge and agree that a restaurant’s menu and pricing are subject to change without notice.
Some areas of the Service may allow Users to post content such as profile information, comments, questions, and other content or information. Any such materials a User submits, posts, displays, or otherwise makes available on the Service is defined as “User Content”. You retain ownership of your User Content.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. The Usual reserves the right, but is not obligated, to reject and/or remove any User Content that The Usual believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have a right to grant, to The Usual a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
If the features of the Service allow you to remove or delete User Content from the Service, the above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete such User Content from the Service. You understand and agree, however, that The Usual may retain, but not display, distribute, or perform, server copies of User Content that have been removed or deleted. The above licenses granted by you in User Content for which the Service does not provide you a means to delete or remove are perpetual and irrevocable.
The Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music, except for User Content (the “The Usual Content”), and all Intellectual Property Rights related thereto, are the exclusive property of The Usual and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the The Usual Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place The Usual under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, The Usual does not waive any rights to use similar or related ideas previously known to The Usual, or developed by its employees, or obtained from sources other than you.
Certain aspects of the Service may allow you to obtain certain rewards, reputational or status indicators (for instance, loyalty points) (“The Usual Property”). You understand and agree that regardless of terminology used, The Usual Property represents a limited license right governed solely by the terms of this Agreement and available for distribution at The Usual's sole discretion. The Usual Property is not redeemable for any sum of money or monetary value from The Usual at any time. You acknowledge that you do not own the account you use to access the Service, nor do you possess any rights of access or rights to data stored by or on behalf of The Usual on The Usual servers, including without limitation any data representing or embodying any or all of your The Usual Property. You agree that The Usual has the absolute right to manage, regulate, control, modify and/or eliminate The Usual Property as it sees fit in its sole discretion, in any general or specific case, and that The Usual will have no liability to you based on its exercise of such right. All data on The Usual's servers are subject to deletion, alteration or transfer. Notwithstanding any value attributed to such data by you or any third party, you understand and agree that any data, account history and account content residing on The Usual’s servers may be deleted, altered, moved or transferred at any time for any reason in The Usual’s sole discretion, with our without notice and with no liability of any kind. The Usual does not provide or guarantee, and expressly disclaims, any value, cash or otherwise, attributed to any data residing on The Usual’s servers.
Payment for restaurant menu item orders placed via The Usual shall be made directly to the restaurant. You agree to promptly pay a participating restaurant for any order placed through the Service by your User Account and confirmed by the restaurant, even if you fail to pick up the order when it is ready. The Usual does not and cannot make any guarantees or assume any responsibility for an order’s quality and accuracy or the restaurant’s service. Responsibility for any loss or damage of any sort relating to your dealings with restaurants rests solely between, and is to be addressed by, you and the restaurant.
We care about the privacy of our Users. You can view our Privacy Policy at www.usual.com. In accordance with the Privacy Policy, incorporated herein by reference, The Usual has the right, pursuant to the terms of the Privacy Policy, to collect, use, transfer, process and analyze your Personal Information (as defined in the Privacy Policy) and other anonymous information in the United States. If you do not agree with the Terms of the Privacy Policy you must cease your use of the Service and must not complete the registration process for a registered user account.
The Usual cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Since we respect artist and content owner rights, it is The Usual’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify The Usual’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
| Attn | The Usual, Inc. |
|---|---|
| Address | 456 Montgomery Street, 22nd floor San Francisco, CA 94104 |
| Telephone | 415-891-7562 |
| FAX | 415-962-1899 |
| copyright@usual.com |
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying The Usual and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with The Usual's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, The Usual has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. The Usual may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by The Usual. The Usual does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website from the Service, you do so at your own risk, and you understand that this Agreement and The Usual’s Privacy Policy do not apply to your use of such sites. You expressly relieve The Usual from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that The Usual shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless The Usual and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by applicable law, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Without limiting the foregoing, The Usual, its subsidiaries, and its licensors do not warrant that the content is accurate, reliable or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or loss of data that results from such download or your use of the Service. The Usual does not and cannot make any guarantees regarding Internet connectivity or mobile phone service, and shall not be liable for any loss or damage resulting from any missed or failed communications between you and The Usual’s server that relates to these issues.
The Usual does not warrant, endorse, guarantee, or assume responsibility for any product, including without limitation restaurant menu items, or service advertised or offered by a third party through the Service or any hyperlinked website or service, and The Usual will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
To the maximum extent permitted by applicable law, in no event shall The Usual, its affiliates, agents, directors, employees, suppliers or licensors be liable for any direct, indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use, this Service. Under no circumstances will The Usual be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service or your account or the information contained therein.
To the maximum extent permitted by applicable law, The Usual assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of the Service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Service; (v) any bugs, viruses, Trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Service; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall The Usual, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to The Usual hereunder.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if The Usual has been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
The Service is controlled and operated from its facilities in the United States. The Usual makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by The Usual without restriction.
Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over The Usual, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and The Usual that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California, unless submitted to arbitration as set forth in the following paragraph.
Arbitration. For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Notification Procedures. The Usual may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by The Usual in our sole discretion. The Usual reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. The Usual is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add info@usual.com to your email address book to help ensure you receive email notifications from us.
Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with The Usual in connection with the Service, shall constitute the entire agreement between you and The Usual concerning the Service. This Agreement supersedes all previous written or oral agreements between the parties regarding any similar subject matter. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and The Usual's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at www.usual.com or info@usual.com with any questions regarding this Agreement.
