2. Your Use of the ServicesYou must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to By The Way Burger certain personal information, such as your name, address, e-mail address, mobile phone number and age, as well as at least one valid payment method. You agree that the information you provide to us is accurate and that you will keep it up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and any password for Facebook, Google, or other third party login. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, you must immediately notify us via our Help Center. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization. By The Way Burger grants you a limited, non-exclusive, non-transferable, and revocable license to use the Services for their intended purposes subject to your compliance with these Terms and our policies. You may not copy, modify, distribute, sell, or lease any part of the Services. Unless such restriction is prohibited by law or you have our written permission, you may not reverse engineer or attempt to extract the source code of the Services. You may only access the Services through the interfaces that we provide for that purpose (for example, you may not “scrape” the Services through automated means or “frame” any part of our Services), and you may not interfere or attempt to disrupt our Services. Some parts of our Services may allow you to upload or submit content (such as text, images, video, recipes, lists, links, and other materials). You retain all rights in any content that you upload or submit, and are solely responsible for that content. You grant By The Way Burger a non-exclusive, royalty-free, worldwide, transferable, sub-licensable license to use, store, publicly display, publicly perform, reproduce, modify, create derivative works from, and distribute any such content for the purposes of operating, providing, and improving the Services. By The Way Burger may, in its sole discretion, remove or take down any content that you upload or submit to the Services for any reason, including violation of these Terms or any other policies. You may have the option of accessing the Services through downloadable software and this software may update itself automatically on your device. Some software, or portions of software, in our Services may be governed by open source licenses. In that case, we will make such licenses available to you and, in the case of conflict between such a license and these Terms, the open source license will control but only with respect to the software, or portion of the software, to which it applies. By The Way Burger reserves the right to decline orders, refuse partial or full delivery, terminate accounts, and/or cancel orders at any time in its sole discretion. We’re constantly modifying and improving our products. We may introduce new features, change existing features, or remove features from the Services at any time and without notice. If you provide us with any feedback on or comments regarding the Services, you grant By The Way Burger the right to use such feedback or comments for any purpose without restriction or payment to you.
3. Payment TermsCertain features of the Service, including the placing of orders using the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept an estimate of the fees that you will be charged. Please visit our Help Center for information on how we calculate the fee estimate. All fees are in U.S. Dollars and are non-refundable. This no refund policy applies at all times regardless of your decision to terminate your usage, our decision to terminate your usage and any disruption caused to our Service for any reason whatsoever. By The Way Burger, at its sole discretion, may offer credits or refunds on a case-by-case basis; all credit and/or refund requests must be made within seven (7) days after the delivery was completed. By The Way Burger may change the delivery or other fees for any feature of the Service, including by adding fees, on a going-forward basis at any time. By The Way Burger will charge the payment method you specify at the time of purchase or as otherwise specified by you in your account information as soon as you accept the offer. Your order may be cancelled within two minutes of placing the order. . By The Way Burger reserves the right to determine final prevailing pricing. By The Way Burger, at its sole discretion, may make promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. We may change the fees for the Service at any time as we deem necessary for our business. You authorize By The Way Burger to charge all sums for orders that you make and services you select to the payment method specified in your account. If you pay any fees with a credit card, By The Way Burger may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase. Such pre-authorization may entail a one US dollar ($1.00) one-time charge which shall be credited to your first purchase. All transactions with Couriers generated by your use of the Platform shall be paid via the App. In the event By The Way Burger becomes aware of such transaction paid outside the Platform, you authorize By The Way Burger to charge your payment method 15% of any such transaction amount.
4. Third Party ProvidersDuring use of the Service, you may purchase goods and services from third-party merchants through the Service. Any such activity, and any disputes, terms, conditions, warranties or representations associated with that activity, is solely between you and the applicable third party. By The Way Burger and its licensors shall have no liability, obligation or responsibility for any purchase or transaction between you and any third-party provider. In no event shall By The Way Burger or its licensors be responsible for any content, products, services or other materials on or available from third-party sites or third-party providers. Certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and By The Way Burger disclaims any and all responsibility or liability arising from such agreements between you and a third party. You may engage third-party Couriers through the Service to provide delivery services to you and may interact with those Couriers. Any interactions or disputes between you and a Courier are solely between you and that Courier. By The Way Burger and its licensors shall have no liability, obligation or responsibility for any interaction between you and any Courier. Shall the requested services require any special skills and/or qualifications, it shall be your sole responsibility to check the Third Party Provider’s compliance with such legal, regulatory or other qualifications. By The Way Burger may, in its sole discretion, have criminal and/or financial background checks conducted on certain Couriers. BY HAVING SUCH BACKGROUND CHECKS CONDUCTED, By The Way Burger DOES NOT WAIVE ANY OF ITS DISCLAIMER OR LIMITATIONS OF LIABILITY. The Service may contain third-party advertising and marketing. By agreeing to these Terms you agree to receive such advertising and marketing. The Service may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content
5. By The Way Burger CommunicationsBy creating a By The Way Burger user account, you agree to accept and receive communications from us, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to us. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of By The Way Burger, including but not limited to communications concerning orders placed through your account on the By The Way Burger platform.
6. Transactions Involving Special RequestsYou may have the option to order delivery of alcohol, tobacco and all products regulated by local laws in some locations and from certain retailers. You agree that you will comply with all applicable laws and not cause By The Way Burger, your Courier, or any retailer to contravene any applicable laws. If you receive your delivery in the United States, you agree that you are 21 year of age or older if you order alcohol products. If you order alcohol products, you understand and acknowledge that neither By The Way Burger nor the Courier can accept your order of alcohol products, and the order will only be delivered if the retailer accepts your order. You agree that, upon delivery of alcohol products, the recipient will provide valid government-issued identification proving their age to the Courier delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. You agree that if any applicable legal requirements for the delivery of alcohol are not met, By The Way Burger reserves the right to cancel the alcohol-related portion of your order.
7. RatingsIn order to ensure overall performance of the Platform, By The Way Burger allows Buyers and Providers to rate each other in connection with their respective performance of the Services. You acknowledge and agree that all of your reviews and ratings will be accurate, truthful and complete and that you will not submit any unlawful, abusive, threatening, profane, offensive, discriminatory, defamatory, invasive of another person’s privacy or proprietary rights, or otherwise objectionable. The reviews and ratings that you provide do not reflect the views of By The Way Burger.
8. DisclaimerTHE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, By The Way Burger DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, By The Way Burger MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES, ANY SERVICES PROVIDED BY COURIERS OR THIRD PARTY PROVIDERS, OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES FROM RETAILERS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. By The Way Burger DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF COURIERS, THIRD PARTY PROVIDERS, OR RETAILERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY COURIERS OR THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, REMAINS SOLELY WITH YOU. YOU AGREE THAT NEITHER By The Way Burger NOR ITS AFFILIATES, RETAIL PARTNERS, LICENSORS, OR SUPPLIERS IS RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY COURIER OR THIRD PARTY PROVIDER OR FOR ANY SERVICES PROVIDED BY ANY COURIER OR THIRD PARTY PROVIDER. NEITHER By The Way Burger NOR ITS AFFILIATES, RETAIL PARTNERS, LICENSORS, OR SUPPLIERS WILL BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY PERSONAL SHOPPER OR THIRD PARTY PROVIDER. If you have a dispute with one or more Courier or Third Party Providers, you agree to release By The Way Burger (including our affiliates, and each of our respective officers, directors, employees, agents, shareholders, retail partners, licensors, and suppliers) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes. Furthermore, you expressly waive any rights you may have under California Civil Code Section 1542 (or analogous laws of other jurisdictions), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
9. LIMITATION OF LIABILITYIN NO EVENT SHALL By The Way Burger (INCLUDING OUR AFFILIATES, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR THESE TERMS, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL By The Way Burger (INCLUDING OUR AFFILIATES, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY AND/OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY, DEATH AND/OR EMOTIONAL DISTRESS AND DISCOMFORT) ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY COURIERS OR THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. By The Way Burger, ITS AFFILIATES, RETAIL PARTNERS, LICENSORS, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES, ANY SERVICES PROVIDED BY COURIERS OR THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU FOR MORE THAN THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO By The Way Burger FOR THE PAST 12 MONTHS OF THE SERVICES. THIS PROVISION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. IndemnificationYou agree to defend, indemnify and hold harmless By The Way Burger and its officers, directors, employees, agents, shareholders, affiliates, and retail partners (each, an "Indemnified Party") from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys' and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from your unauthorized use of the Services or from any breach by you of these Terms, including without limitation any actual or alleged violation of any law, rule or regulation.
11. Disputes & ArbitrationIf you have a dispute with By The Way Burger arising out of your use of the Services, this Section 11 applies. You agree to contact us first and attempt to work out any such dispute amicably. In the interest of resolving disputes between you and By The Way Burger in the most expedient and cost effective manner, you and By The Way Burger agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any arbitration between you and By The Way Burger will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting By The Way Burger at [insert customer service email]. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND By The Way Burger ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Despite the provisions of the paragraph directly above, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) Bring an individual action in small claims court; (b) Pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) Seek injunctive relief in a court of law; or (d) To file suit in a court of law to address an intellectual property infringement claim.
12. Controlling LawThese Terms will be governed by the laws of the State of California, without respect to its conflicts of laws principles. Any claims arising out of or relating to these Terms or use of the Services that are not subject to Section 11 (Disputes & Arbitration) of these Terms shall be brought exclusively in the federal or state courts of Los Angeles County, California, USA, and you and By The Way Burger consent to the personal jurisdiction of those courts.
13. TerminationYou can stop using the Services at any time and without notice to us. Similarly, we may terminate access to the Services to you or any other users or stop offering the Service at any time without notice.
14. Entire Agreement & SeverabilityThese Terms, subject to any amendments, modifications, or additional agreements you enter into with By The Way Burger, shall constitute the entire agreement between you and By The Way Burger with respect to the Services and any use of the Services. If any provision of these Terms is found to be invalid by a court competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.
15. No WaiverBy The Way Burger’s failure to monitor or enforce a provision of these Terms does not constitute a waiver of its right to do so in the future with respect to that provision, any other provision, or these Terms as a whole.
16. AssignmentYou may not assign any of your rights, licenses, or obligations under these Terms. Any such attempt at assignment by you shall be void. By The Way Burger may assign its rights, licenses, and obligations under these Terms without limitation.
17. Changes to the TermsWe may make changes to these Terms from time to time. When we do so, we will post the most current version of the Terms on our website and, if a revision to the Terms is material, we will notify you of the new Terms (for example, by email or a notification on our Services). Changes to these terms will not apply retroactively. If you do not agree to the modified terms, you should discontinue your use of the Services.
18. Copyright PolicyBy The Way Burger respects the intellectual property rights of others and has implemented a copyright policy in accordance with the Digital Millennium Copyright Act and other relevant laws. By The Way Burger will respond to valid notices of copyright infringement and reserves the right to terminate any users, at our sole discretion and without notice, who repeatedly infringe copyrights or other intellectual property rights of others. If you believe any content posted or made available on the By The Way Burger Services constitutes infringement of your copyright rights, you may send a written notice of infringement to By The Way Burger’s designated Copyright Agent using the contact information listed below. In your notice, please specify the nature of the copyright infringement and include the following information: (a) an electronic or physical signature of the owner of the copyright in question or a person authorized to act on behalf of the owner of the copyright; (b) a description of the claimed infringing material as well as identification of the claimed infringing material, including the location of such material on the By The Way Burger Services (e.g., the URL of the claimed infringing material if applicable or other means by which we may locate the material); (c) complete contact information, including the name of the owner of the copyright and your name, title, address, telephone number, and email address; (d) a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (e) a statement, made under penalty of perjury, that the information provided in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner.
By The Way Burger
8719 Santa Monica Blvd
19. Contact Information
If you have any questions, complaints or comments about the Services contact us at:
By The Way Burger