Terms & Conditions of Service
All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to use the Services. If you are a minor, you must have your parent or guardian read and agree to this Agreement prior to you using the Services. Persons under the age of 13 are not permitted to register for the Services or use the Services.
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY ACKNOWLEDGING SUCH ACCEPTANCE DURING THE REGISTRATION PROCESS (IF APPLICABLE) AND ALSO BY CONTINUING TO USE THE SERVICES. IF YOU DO NOT AGREE TO ABIDE BY THIS AGREEMENT, OR TO MODIFICATIONS THAT HIT THE SPOT MAY MAKE TO THIS AGREEMENT IN THE FUTURE, DO NOT USE OR ACCESS OR CONTINUE TO USE OR ACCESS THE SERVICES.
DESCRIPTION OF SERVICES
Hit The Spot provides food and beverage (collectively, “food”) ordering services. The Services involve a communications platform and marketplace that are designed primarily to enable GPS-based food ordering and delivery among (i) individuals or businesses wanting to obtain food via delivery to a GPS-based location or via pick up ("Customers"), (ii) restaurants and similar businesses offering food for sale (“Vendors”), and/or (iii) individuals providing delivery services for such food ("Delivery Contractors"). Customers, Vendors, and Delivery Contractors are all considered "users" of the Services. Food orders requested by Customers through the Services are hereinafter referred to as “Orders.”
Hit The Spot does not sell or control the production of any food produced by Vendors. Vendors are obligated by Hit The Spot to comply with federal, state and local laws, rules, regulations, and standards pertaining to food preparation, sale, marketing and safety. However, it is critical for users to understand that Hit The Spot does not in any way independently verify the credentials, representations or products of Vendors, the ingredients or the quality of any products, or that a Vendor is in compliance with applicable laws. Customers must make themselves comfortable through information provided by Vendors on the Services or as requested by Customers directly from the Vendors as to the quality and reliability of the Vendors, as well as to their compliance with applicable laws. Hit The Spot does not in any way guaranty the quality of any food or that any food complies with applicable laws. In addition, a Vendor may represent that food preparation is in accordance with special standards such as "organic," "kosher," "macrobiotic" or allergen-specific standards such as "nut-free," "gluten-free," or "lactose-free." However, Hit The Spot does not independently investigate or verify such representations. Hit The Spot is not liable or responsible for any food or services offered by Vendors that are unhealthy, are the cause of injury, that are otherwise unacceptable to Customers or that do not meet the expectation of Customers in any manner. If applicable, Customers are solely responsible for verifying the accuracy of delivery addresses, and Hit The Spot has no liability or responsibility for any such erroneous addresses.
Delivery Contractors are independent contractors of Hit The Spot. Delivery Contractors are obligated by Hit The Spot to undertake a minimal amount of training and to comply with federal, state and local laws, rules, regulations, and standards pertaining to food delivery. However, Hit The Spot does not exercise control or supervision over the quality, timing, legality, method, failure to provide, or any other aspect whatsoever of Delivery Contractors, nor of the integrity, responsibility or any of the actions or omissions whatsoever of any users.
Hit The Spot makes no representations about the suitability, reliability, timeliness, or accuracy of Orders requested and provided by users identified through the Services whether in public, private, or offline interactions. Hit The Spot does not assume any responsibility for the accuracy or reliability of this information or any information on the Services.
Fees for various services are described throughout the Services.
Please direct all complaints concerning Vendors or Delivery Contractors to Hit The Spot's attention as indicated on the Services.
All ordering is performed via the Hit The Spot mobile applications or website. Hit The Spot does not directly take part in the interaction between users, i.e., the purchase, sale, preparation and delivery of food and beverages. Users of the Services contract for Orders directly with other users. Hit the Spot will not be a party to any contracts for Orders. Hit the Spot facilitates these contracts by supplying a medium for the identification of Vendors and their offerings, coordination of delivery services if available, and the exchange of money between the Customer, Vendor, and/or Delivery Contractor.
Your receipt of an electronic or other form of Order confirmation does not signify the acceptance of your Order, nor does it constitute confirmation of an offer to sell. Vendors may have the right at any time after receipt of your Order to accept, decline, or limit your Order for any reason, whether or not your credit card has been charged. If your credit card has been charged and your Order is canceled you will receive a prompt refund credit to your account. Once an Order has been placed, it cannot be cancelled by the Customer.
“Standard Order” means an Order created from a Vendor’s menu that is available through the Services. For Standard Orders, Customers browse available Vendor menus, build an order, and pick the spot for either delivery or pick-up of the food. The Vendor or a Delivery Contractor will deliver the food to the Customer at his or her selected location, or, if the Customer has specified, the Customer will pick up the food at the Vendor’s location.
“Custom Order” means a request by a Customer (via the Services) for a Delivery Contractor to place, pick-up, and deliver a food order from a Vendor that does not participate in the Services. Custom Orders create a contract between the Customer and the Delivery Contractor, without the direct involvement of the Vendor. Custom Orders should specify the exact name and location of the Vendor, the exact menu items the Customer wants from the Vendor, the desired delivery time and location, and the maximum amount the Customer is willing to pay for the entire Order, plus the current delivery fees indicated in the Services. By submitting the Custom Order, Customer agrees that Hit The Spot may authorize the specified maximum amount on Customer’s credit card. Hit The Spot will send the Custom Order to Delivery Contractors working in the applicable area, if any, each of whom may reply to the Customer and propose to fulfill the Custom Order (with any proposed modifications). Once terms are agreed to, the Customer must indicate acceptance and initiate the Custom Order via the Services to proceed. The Delivery Contractor will place the food order, pick up the food, and deliver it to the Customer at the agreed-upon location. Upon delivery, the Customer’s credit card is charged for the actual cost of the entire order, including any applicable delivery fees.
Payment Terms and Sales Taxes
Customers are usually billed directly by Hit The Spot for their Orders, and "Hit The Spot" will be the name that appears on your payment records, but Hit The Spot will not in any manner be considered the seller of the food or delivery services. Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us prior to the acceptance of an Order. By submitting an Order, you authorize Hit The Spot to charge your credit card or other payment method for the full amount of the Order listed on the checkout page plus any applicable delivery fees. Payments for Orders must be paid through the Services, except for any reimbursement expenses that are incurred by a Delivery Vendor in connection with the completion of a Customer Order, which may be paid in cash offline or through the Services.
We accept the major credit cards, and some other methods of payment, for all purchases as indicated in the Services. We may stop accepting any particular method of payment at any time. You represent and warrant that (i) the credit card and payment information you supply to us is true, correct and complete, (ii) charges incurred by you will be honored by your credit card company, and (iii) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
Note that your carrier’s standard data and messaging rates may apply to all communications between Hit The Spot and your mobile device for communicating with us, and downloadable content or other material may incur additional charges.
Changes in Products and Pricing
Vendors are constantly updating and revising their offerings of products, and they may discontinue or run out of products and services at any time without notice. To the extent that we provide information on availability of products or services, you should not rely on such information, and we will not be liable for any lack of availability of products or services that you may order through the Services.
All pricing for the products available through the Services is subject to change. For all of our and our Vendor’s prices and products, we reserve the right to make adjustments due to changing market conditions, product discontinuation, manufacturer price changes, errors in advertisements and other extenuating circumstances.
In the case of problems with your food order, please contact the Vendor directly. If you have not been able to resolve your issue with the Vendor to your satisfaction, or if the problem relates to the delivery services, please contact Hit The Spot and we will try to assist you.
In appropriate cases, if you have already been billed by Hit The Spot, we may in our discretion issue full or partial refunds.
NOTE THAT YOU WILL BE RESPONSIBLE FOR THE FULL COST OF YOUR ORDER AND YOUR CREDIT CARD OR OTHER PAYMENT METHOD WILL BE CHARGED, WHETHER OR NOT YOU RECEIVE THE FOOD, (1) IF YOU ARE NOT PRESENT AT THE DESIGNATED OR AGREED-UPON DELIVERY TIME AND LOCATION, WHETHER A SPECIFICALLY DESIGNATED PHYSICAL ADDRESS OR LOCATION OR THE LOCATION OF YOUR MOBILE DEVICE AS INDICATED BY GPS-BASED TECHNOLOGY, (2) IF WE CANNOT DETECT THE LOCATION OF YOUR MOBILE DEVICE AND YOU DO NOT RESPOND TO ATTEMPTS TO CONTACT YOU BY VOICE OR SMS, OR (3) IF YOU ATTEMPT TO EVADE THE DELIVERY OF YOUR ORDER. CUSTOMERS SHOULD MAKE THEMSELVES EASILY-FOUND, ESPECIALLY IF DELIVERY IS TO A MOBILE-DEVICE LOCATION.
By using the Services, you represent and warrant that:
all registration information you submit is truthful and accurate;
you will maintain the accuracy of such information;
you will keep your password confidential and will be responsible for all use of your password and account;
you are the owner or authorized user of any mobile device you use in connection with the Services;
you are not a minor in the jurisdiction in which you reside, or if a minor, you have received parental permission to use the Services; and
your use of the Services does not violate any applicable law or regulation.
Regarding Content You Provide
You are entirely responsible for the content of, and any harm resulting from, your postings to the interactive portions of the Services ("Contributions"). When you create, post, or make available a Contribution, you thereby represent and warrant that:
the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your Contribution does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party;
you are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize Hit The Spot and the users of the Services to use your Contributions as necessary to exercise the licenses granted by you under this Agreement;
your Contribution does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content;
your Contribution is not obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable (as determined by Hit The Spot), libelous, defamatory, or slanderous, does not advocate the violent overthrow of the government of the United States, does not incite, encourage or threaten immediate physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
your Contribution does not constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on Hit The Spot's or others' computers or equipment, designed to enable you or others to gather information about or monitor the online or other activities of another party;
your Contribution does not inundate the Services with communications or other traffic indicating no intent to use the Services for their stated purposes;
your Contribution does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation; and
your Contribution does not contain pictures, data, audio or visual files, or any other content that is excessive in size, as determined by Hit The Spot in its sole discretion.
By posting Contributions to any part of the Services, you automatically grant, and you represent and warrant that you have the right to grant, to Hit The Spot an irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide license to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Contributions for any purpose, commercial, advertising, or otherwise, on or in connection with the Services or the promotion thereof, to prepare derivative works of, or incorporate into other works, such Contributions, and to grant and authorize sublicenses of the foregoing.
We have the right (but no obligation), in our sole and absolute discretion, to (i) edit, redact or otherwise change any Contributions, (ii) re-categorize any Contributions to place them in more appropriate locations or (iii) pre-screen or delete any Contributions that are determined to be inappropriate or otherwise in violation of this Agreement. Contributions are not endorsed by Hit The Spot, and do not represent the views of Hit The Spot or of any affiliate or partner of Hit The Spot. Hit The Spot does not assume liability for any Contributions or for any claims, liabilities or losses resulting from any Contributions.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services ("Submissions") provided by you to Hit The Spot are non-confidential and Hit The Spot (as well as any designee of Hit The Spot) is entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You may not access or use the Services for any other purpose other than that for which Hit The Spot makes them available. The Services are for the personal use of users only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by Hit The Spot. Prohibited activity includes, but is not limited to:
criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets;
advertising to, or solicitation of, any user to buy or sell any products or services, unless authorized by Hit The Spot;
systematic retrieval of data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Hit The Spot;
making any unauthorized use of the Hit The Spot Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email;
engaging in unauthorized framing of or linking to the Services;
transmitting chain letters or junk email to other users;
using any information obtained from the Services in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
engaging in any automated use of the system, such as using scripts to add friends or send comments or messages, or using any data mining, robots or similar data gathering and extraction tools;
interfering with, disrupting, or creating an undue burden on the Services or the networks or services connected to the Services;
attempting to impersonate another user or person;
using the username of another user;
selling or otherwise transferring your profile;
using any information obtained from the Services in order to harass, abuse, or harm another person;
using the Services as part of any effort to compete with Hit The Spot or to provide services as a service bureau;
deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the Services;
attempting to bypass any measures of the Services designed to prevent or restrict access to the Services, or any portion of the Services;
harassing, annoying, intimidating or threatening any Hit The Spot employees or agents engaged in providing any portion of the Hit The Spot Services to you;
displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Services on behalf of that person, such as posting blogs or bulletins with a commercial purpose;
deleting the copyright or other proprietary rights notice from any Contribution or Hit The Spot Content; and
using the Services in a manner inconsistent with any and all applicable laws and regulations.
INTELLECTUAL PROPERTY RIGHTS
The content on the Services ("Hit The Spot Content") and the trademarks, service marks and logos contained therein ("Marks") are owned by or licensed to Hit The Spot, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Hit The Spot Content, includes, without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics. All Hit The Spot graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Hit The Spot in the U.S. and/or other countries. Hit The Spot's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Hit The Spot. Hit The Spot Content is provided to you "AS IS" for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Systematic retrieval of data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from Hit The Spot is prohibited. Provided that you are eligible to use the Services, you are granted a limited license to access and use the Services and the Hit The Spot Content and to download or print a copy of any portion of the Hit The Spot Content to which you have properly gained access solely for your personal, non-commercial use. Hit The Spot reserves all rights not expressly granted to you in and to the Services and Hit The Spot Content and Marks. If you download or print a copy of Hit The Spot Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any Hit The Spot Content or enforce limitations on use of the Services or the Hit The Spot Content therein.
THIRD PARTY LINKS
The Services contain (or you may be sent through the Services) links to other websites ("Third Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the "Third Party Content"). Such Third Party Websites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Websites accessed through the Services or any Third Party Content posted on, available through or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Websites or the Third Party Content. Inclusion of, linking to or permitting the use or installation of any Third Party Website or any Third Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Services and access the Third Party Websites or to use or install any Third Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Services or relating to any applications you use or install from the Services. Any purchases you make through Third Party Websites will be through other websites and from other companies, and Hit The Spot takes no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party.
Hit The Spot reserves the right but does not have the obligation to:
monitor the Services for violations of this Agreement;
take appropriate legal action against anyone who, in Hit The Spot's sole discretion, violates this Agreement, including without limitation, reporting such user to law enforcement authorities;
in Hit The Spot's sole discretion and without limitation, refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any user's Contribution or any portion thereof that may violate this Agreement or any Hit The Spot policy;
in Hit The Spot's sole discretion and without limitation, notice or liability to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to Hit The Spot's systems;
terminate the accounts of repeat infringers; and
otherwise manage the Services in a manner designed to protect the rights and property of Hit The Spot and others and to facilitate the proper functioning of the Services.
TERM AND TERMINATION
This Agreement will remain in full force and effect while you use the Services or are otherwise a user of the Services. You may terminate your use or participation at any time, for any reason, by following the instructions for terminating user accounts in your account settings.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, HIT THE SPOT RESERVES THE RIGHT TO, IN HIT THE SPOT'S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES AND THE HIT THE SPOT SERVICES, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION, AND HIT THE SPOT MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES AND THE HIT THE SPOT SERVICES, DELETE YOUR PROFILE AND ANY CONTENT OR INFORMATION THAT YOU HAVE POSTED AT ANY TIME, WITHOUT WARNING, IN HIT THE SPOT'S SOLE DISCRETION.
Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, will be deemed to survive for as long as necessary to fulfill such purposes.
Hit The Spot may modify this Agreement from time to time. Any and all changes to this Agreement will be reflected on and accessible from the Services, and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use the Hit The Spot Services after any such modification posted on the Services becomes effective. Hit The Spot may also, in its discretion, choose to alert all users with whom it maintains email information of such modifications by means of an email to their most recently provided email address. It is therefore important that you regularly review this Agreement and keep your contact information current in your account settings to ensure you are informed of changes.
Hit The Spot reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Modifications may include, but are not limited to, changes in the pricing structure, or the addition of fee-based services. Any new features that augment or enhance the then-current Services are subject to this Agreement. You agree that Hit The Spot is not liable to you or to any third party for any modification, suspension or discontinuance of the Services.
If there is a dispute between users of the Services, or between users and any third party, you understand and agree that Hit The Spot is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Hit The Spot, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Services.
With Hit The Spot
All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to the Services will be governed and construed by the law of the State of Washington, excluding such state's conflicts of law rules. Any legal action of whatever nature by or against Hit The Spot arising out of or related in any respect to the Services must be brought solely in either the applicable federal or state courts located in or with jurisdiction over King County, Washington; subject, however, to the right of Hit The Spot, in Hit The Spot's sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to a user. You hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event will any claim, action or proceeding by you related in any way to the Services (including your visit to or use of the Services) be instituted more than one (1) year after the cause of action arose.
CORRECTIONS, INTERRUPTIONS, AND ERRORS
Occasionally there may be information on the Services that contains typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information. Hit The Spot reserves the right to correct any errors, inaccuracies or omissions and to change or update the information at any time, without prior notice.
You understand and agree that temporary interruptions of the Services may occur as normal events. You further understand and agree that we have no control over third party networks you may access in the course of the use of the Services, and therefore, delays and disruption of other network transmissions are completely beyond our control.
You understand and agree that the Services are provided “AS IS” and that we assume no responsibility for the timeliness, deletion, mis-delivery, or failure to store any user communications or personalization settings.
Hit The Spot cannot control the nature of all of the content available on the Services or food products sold and delivered via the Services. By operating the Services, Hit The Spot does not represent or imply that Hit The Spot endorses any Vendor or Delivery Contractor, or their products, blogs, Contributions or other content or products available on or linked to by the Services, including without limitation content hosted on third party websites, or that Hit The Spot believes food products, Contributions, blogs or other content to be accurate, useful or non-harmful. We do not control and are not responsible for unlawful or otherwise objectionable products or content you may encounter on the Services or in connection with any Vendors, Delivery Contractors, or Contributions. Hit The Spot is not responsible for the conduct, whether online or offline, of any user of the Services.
YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, HIT THE SPOT, ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HIT THE SPOT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES' CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. HIT THE SPOT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND HIT THE SPOT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATIONS OF LIABILITY
YOU AGREE NOT TO HOLD HIT THE SPOT, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, OR DIRECTORS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY HIT THE SPOT OR ITS AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION.
IN NO EVENT SHALL HIT THE SPOT, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF HIT THE SPOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT HIT THE SPOT OR ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, OR DIRECTORS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO HIT THE SPOT DURING THE PERIOD OF ONE (1) MONTH PRIOR TO ANY CAUSE OF ACTION ARISING.
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 OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "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."
You agree to defend, indemnify and hold Hit The Spot, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any party due to or arising out of your Contributions, use of Hit The Spot Services, including, without limitation use in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth above. Notwithstanding the foregoing, Hit The Spot reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Hit The Spot, and you agree to cooperate, at your expense, with Hit The Spot's defense of such claims. Hit The Spot will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
Except as explicitly stated otherwise, any notices given to Hit The Spot must be given by email to info@HitTheSpot.com. Any notices given to you will be given to the email address you provided during the registration process, or such other address as each party may specify. Notice will be deemed to be given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid. We may also choose to send notices by regular mail or online postings.
In addition to any excuse provided by applicable law, we have no liability for non-processing or delay in processing of Orders made through the Services arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
This Agreement constitutes the entire agreement between you and Hit The Spot regarding the use of the Services. The failure of Hit The Spot to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement and your account may not be assigned by you without our express written consent. Hit The Spot may assign any or all of its rights and obligations to others at any time. Hit The Spot will not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Hit The Spot's reasonable control. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) INFRINGEMENT NOTICE AND POLICY
If you believe that content available on or through the Services infringes one or more of your copyrights, please immediately notify our Copyright Agent by mail or email notice ("Notification") providing the information described below, which Notification is pursuant to DMCA 17 U.S.C. § 512(c)(3). A copy of your Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law you may be held liable for damages if you make material misrepresentations in a Notification. Thus, if you are not sure that content located on or linked to by the Services infringes your copyright, you should consider first contacting an attorney. Hit The Spot has a policy of terminating repeat infringers in appropriate circumstances.
All Notifications should include the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Hit The Spot to locate the material.
Information reasonably sufficient to permit the Hit The Spot to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications should be sent to our Copyright Agent as follows:
Hit The Spot, LLC
1638 21st Avenue
We also will advise the alleged infringer of the DMCA statutory Counter Notification procedure described below by which the alleged infringer may respond to your claim and request that we restore this material.
If you believe your own copyrighted material has been removed from the Services as a result of mistake or misidentification, you may submit a written counter notification ("Counter Notification") to our Designated Copyright Agent pursuant to DMCA 17 U.S.C. § 512(g)(2) and (3). To be an effective Counter Notification under the DMCA, your Counter Notification must include substantially the following:
Identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled.
A statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which the Hit The Spot is located.
A statement that you will accept service of process from the party that filed the Notification or the party's agent.
Your name, address and telephone number.
A statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
Your physical or electronic signature.
You may submit your Counter Notification to our Copyright Agent by mail or email as set forth above.
If you send us a valid, written Counter Notification meeting the requirements described above, we will restore your removed or disabled material after 10 business days but no later than 14 business days from the date we receive your Counter Notification, unless our Copyright Agent first receives notice from the party filing the original Notification informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question. Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney's fees. Filing a false Counter Notification constitutes perjury.
The Services may incorporate the use of SMS messaging to facilitate communication between users. The following provisions apply to your use of SMS messaging:
Your carrier's standard messaging rates apply to your entry or submission message, our confirmation and all subsequent SMS correspondence. Hit The Spot does not charge for any content, however downloadable content may incur additional charges from your cell phone provider. Please contact your wireless carrier for information about your messaging plan. Your carrier may impose message or charge limitations on your account that are outside our control. All charges are billed by and payable to your mobile service provider.
By using the Services, you consent to receiving SMS as a method of communication to facilitate us contacting and updating you with information about your Order. You can unsubscribe at any time from all SMS services by using the settings on your account or by sending an email to us.
You represent that you are the owner or authorized user of the wireless device you use to subscribe for the Services, and that you are authorized to approve the applicable charges.
We will not be liable for any delays or failures in your receipt of any SMS messages as delivery is subject to effective transmission from your network operator and processing by your mobile device. SMS message services are provided on an AS IS, AS AVAILABLE basis.
Data obtained from you in connection with this SMS service may include your cell phone number, your carrier's name, and the date, time and content of your messages and other information that you may provide. We may use this information to contact you and to provide you notifications about your Orders. Your wireless carrier and other service providers may also collect data about your SMS usage, and their practices are governed by their own policies. We will only use information you provide to the Services to transmit you text messages or as otherwise described in this document. Nonetheless, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, or to protect our rights or property. When you complete forms online or otherwise provide us information in connection with the Services, you agree to provide accurate, complete, and true information.