The online ordering service of CLIENT (“Merchant”) on this website is offered to you through participating stores only. You are able to use the online ordering service to purchase goods online for the purpose of picking up from and/or delivering to specified locations. TOU (“TOU”) is a technology service provider that hosts the online ordering service on behalf of CLIENT. This online grocery ordering website (“Site”) and associated online ordering service (“NoQ Service”) is owned and maintained by NoQ. Through the Site and NoQ Service, the Merchant may advertise, promote and offer its goods and services.
2. Registration and Operation.
2.1 You acknowledge and agree that to use some areas and functionality of the Site and NoQ Service you must register and provide all information required by NoQ during the registration process (“User Information”). By registering and providing the User Information, you warrant that:
• you will provide up-to-date, complete, current and accurate information and will continually update all User Information as required;
• you will keep the registration details, including username(s) and password(s), secure and confidential; and
• the User Information is not misleading, false, fraudulent or defamatory and does not infringe the intellectual property rights of any third party.
2.2 Once you have become an authenticated user, you will create one or more personal, nontransferable passwords. You are and will be responsible for maintaining the confidentiality of that password, for all activities conducted on and with the Site and NoQ Service that make use of that password, and for any charges or fees incurred by the use of that password, including any use you may subsequently contend was not unauthorized by you.
2.3 Should NoQ suspect that such information is untrue, inaccurate, not current or incomplete, NoQ has the right to suspend or terminate your usage of the Site and NoQ Service. NoQ is entitled to rely on the information you provide, and you will be responsible for updating this information to maintain it as current. Accounts are nontransferable and cannot be shared or used by more than one individual or entity.
Subject to these TOU, NoQ and its licensors grant to you a personal, nonexclusive, non-transferable license to: (a) access, view, print and use certain text, images, photographs, documents, information and other materials contained or displayed in or made available through the Site (collectively, “Materials”); (b) access and use the NoQ Service; and (c) use the tools and software on the Site (collectively, “Software”); solely for your own personal and non-commercial use. In these TOU, all references to the “Site” shall be deemed to include all “Software” and “Materials” and the “NoQ Services,” unless otherwise expressly indicated. All rights not expressly granted by NoQ to you are retained by NoQ, and you may not use the Site and/or any element of the Site in any manner or for any purpose not expressly authorized by these TOU. The rights granted to you do not include, and are not applicable to, the design or layout of the Site, which are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
Removal. You shall not: (a) remove or destroy any proprietary marks or legends on or in the Site; (b) modify, enhance, adapt, translate, or create derivative works of the Site; (c) republish, post, transmit, transfer, distribute, assign, sublicense, rent, lease or sell the Site; (d) decompile, disassemble or reverse engineer the Site; (e) reproduce or make copies of the Site; (f) “frame” or “mirror” the Site on any other server or Internetbased device; and/or (g) access, view, download, print, use and/or display the Site for any commercial or other money-making purpose. You acknowledge that certain elements of the Site are, or may in the future be, licensed to NoQ by third parties and that the availability of such elements may cease automatically, without notice or liability on the part of NoQ.
6. Account Information and Data.
6.3 You, not NoQ, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data, and NoQ shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data, or for any actions or omissions which NoQ takes in reliance upon your Data.
NoQ and/or its licensors own and shall retain all rights, title and interests, including all intellectual property rights, in and to the Site, and all elements thereof. Except for the express licenses granted to you herein, you neither have nor acquire any rights, title or interests in or to the Site, or any element thereof.
8. Marks and Logos.
All names, marks, symbols and logos used in connection with the Site are trademarks of NoQ or other third parties (the “Marks”). NoQ grants you no license, permission or authorization to reproduce or use any Marks, whether owned by NoQ or a third party. You agree not to display, copy, redistribute or use any Marks in any manner for any reason without NoQ’s prior express written consent.
9. Third Party Services.
9.1 In your use of the Site, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of the Merchant showing its products and/or services through the Site. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the Merchant. NoQ is not the supplier of any of the goods or services offered through the Site. NoQ does not participate in or moderate any transactions or disputes between you and the Merchant. NoQ shall have no liability, obligation or responsibility for any such correspondence, transaction, exchange, purchase, sale, promotion or other activity conducted between you and the Merchant.
9.2 The Merchant is entirely responsible for all goods and services offered via the Site. Because NoQ is not and cannot be a party in your communications, interactions and/or transactions with the Merchant on or through the Site, in the event that you have a dispute with the Merchant, you acknowledge that your sole and exclusive remedy is against the Merchant.
9.3 Representations about goods and services are based on information and material provided to NoQ by the Merchant. For the avoidance of doubt, you acknowledge that NoQ takes no responsibility whatsoever nor makes any representations, either express or implied, as to quality, accuracy, reliability or credibility of information or material supplied or made available by third parties, including the Merchant, on the NoQ Service.
9.4 All disputes relating to any offered goods and services must be directed to the Merchant and you hereby release and hold NoQ, its subsidiaries, affiliates, officers, directors, agents and employees harmless from any and all claims, demands, suits, liability, loss, expenses, fees (including attorneys’ fees), judgments, penalties, fines and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9.5 Any dispute between you and the Merchant must be resolved by you and the Merchant. NoQ is under no obligation to resolve or assist you in resolving a dispute with the Merchant. For the avoidance of doubt:
• NoQ does not provide food or beverages, and is not a seller of food or beverages (including liquor). It is in the discretion of the Merchant to offer food and beverages for sale which may be purchased through use of the Site; and
• NoQ is not an agent, partner or joint venturer of the Merchant. '
9.6 NoQ may offer information and a method to obtain the details of the products or services for sale from the Merchant, and will not and does not intend to provide or make a representation in respect of the quality or availability of such products or services or act in any way as a seller of food or beverages, and has no responsibility or liability for any products or services provided to you by the Merchant or any other third parties.
10. Third Party Sites and Materials.
10.1 Please exercise discretion while browsing the Internet using the Site. You should be aware that when you are on the Site, you could be directed to other sites that are beyond NoQ’s control. There may be links to other sites from these pages that take you outside of NoQ’s Site. This may include links from advertisers, sponsors and content partners. These other sites may send their own cookies to users, collect data, solicit personal information, or contain information that you may find inappropriate or offensive. In addition, any advertisers on the Site may send cookies to users that NoQ does not control. NoQ reserves the right to disable any links from third party sites to the Site at any time in its sole discretion.
10.2 NoQ is not affiliated with, nor does NoQ endorse or sponsor, any sites on the Internet that are linked through or to the Site. NoQ provides any such links to you only as a matter of convenience, and in no event shall NoQ be responsible or liable for any information, content, products, services or other materials on or available from or through such sites. NoQ explicitly disclaims any responsibility for the accuracy, content, or availability of information found on sites that link to or from the Site. NoQ has not taken any steps to confirm the accuracy or reliability of any of the information contained in such third party sites or content. NoQ does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against NoQ with respect to such sites and third party content. NoQ strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties.
11. Your Additional Responsibilities.
You are solely responsible for any and all activities that occur under your account including inputting, maintaining, and managing accurate information and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify NoQ immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of the Site that is known or suspected by you. NoQ shall not be responsible for any unauthorized access to, or alteration of, your transmissions or Data, any material, information or data sent or received, regardless of whether the data is actually received by NoQ, or any transactions entered into through the Service or failure to abide by these TOU.
12. Compliance with Laws;
Prohibited Activities. You agree to abide by all applicable local, state, and federal laws, regulations, statutes, rules and ordinances, in connection with your use of the Site. Without limiting the foregoing, you shall not use the Site to: (a) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses; (c) transmit or post unlawful, harassing, bigoted, racist, hateful, libelous, abusive, tortious, defamatory, threatening, harmful, invasive of another’s privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) transmit or post any material that may infringe the intellectual property rights or other rights of third parties, including trademark, trade secret, copyright or right of publicity; (e) transmit or post any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs and cancelbots; (f) interfere with or disrupt servers or networks connected to the Site or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Site or computer systems or networks connected to the Site through password mining or any other means; (h) harass or interfere with another user’s use and enjoyment of the Site; or (i) transmit or post, or promote the transmission or posting of, an illegal or unauthorized copy of another person’s work, such as providing pirated computer programs or links to them, providing information to circumvent manufactureinstalled copy-protect devises, or providing pirated content or links to pirated content files. In addition, you agree not to use any device, software, or routine, including but not limited to any viruses, worms, time bombs, to interfere or attempt to interfere with the proper working of the Site or any NoQ Service, or to intercept any system, data or personal information from the Site, nor will you take any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure.
You shall indemnify, defend and hold NoQ, its licensors and information providers, and each such party’s parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your: (a) access to and/or use of the Site; (b) Data and other information provided to NoQ; (c) breach of these TOU; and/or (c) violation of any applicable law or right of a third party.
14. DISCLAIMER OF WARRANTIES.
14.1 YOU ACKNOWLEDGE THAT: THE SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE SITE MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES AT THE SITE MAY BE OR BECOME OUT OF DATE AND NOQ MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. NOQ ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, DOCUMENTS, SOFTWARE, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO THIS SITE. REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
14.2 YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM NOQ, OR THROUGH OR FROM THE SITE, SHALL CREATE ANY REPRESENTATION OR WARRANTY BY NOQ.
14.3 THE SITE IS PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE. WITHOUT LIMITING THE FOREGOING, NEITHER NOQ, ITS LICENSORS NOR ANY CONTENT PROVIDERS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE, OR THAT THE USE OF THE SITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA.
14.4 ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF 7 Detroit_9241423_1 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NOQ, ITS LICENSORS AND CONTENT PROVIDERS.
14.5 YOU ACKNOWLEDGE THAT TO THE EXTENT PERMITTED BY LAW, NOQ DOES NOT ACCEPT LIABILITY FOR ANY ERRORS, OMISSIONS, EXPENSES, LOSSES OR DAMAGES CAUSE BY YOUR ACCESS OR INABILITY TO ACCESS AND/OR USE THE NOQ SERVICE, REPRESENTATIONS MADE BY THE MERCHANT THROUGH THE NOQ SERVICE (INCLUDING WHERE INACCURATE INFORMATION OR MATERIAL HAS BEEN PROVIDED), YOUR DEALINGS WITH THE MERCHANT ARISING FROM ANY USE OF THE NOQ SERVICE AND/OR ANY FAILURE IN THE NETWORKS OR SERVERS USED TO PROVIDE THE NOQ SERVICE (INCLUDING BREACH OF SECURITY OR INTEGRITY IN CONNECTION WITH THE NOQ SERVICE).
15. LIMITATION OF LIABILITY AND ACTIONS.
REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL NOQ, ITS LICENSORS OR CONTENT PROVIDERS BE LIABLE OR RESPONSIBLE TO YOU IN CONNECTION WITH THE SITE, OR YOUR USE THEREOF, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THEY ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (B) LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOST EXPECTANCY, BUSINESS INTERRUPTIONS AND/OR BENEFIT OF THE BARGAIN DAMAGES; AND/OR (C) DIRECT DAMAGES IN AN AMOUNT GREATER THAN $500.00. ANY CLAIM RELATED TO THE SITE MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE YOU KNEW, OR REASONABLY SHOULD HAVE KNOWN, OF THE EXISTENCE OF SUCH CLAIM AGAINST NOQ. FOR AVOIDANCE OF DOUBT, DIRECT DAMAGES DO NOT EXTEND TO GOODS OR SERVICES SUPPLIED BY THE MERCHANT.
16.1 NoQ controls and operates the Site from its locations in the United States of America and Australia. The NoQ Service is only available to users located in United States. NoQ makes no representation that the Site is appropriate or available for use in other locations. Those who choose to access the Site do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You are expressly prohibited from using or accessing the Site from any location in which the Site and/or any Software, Materials and/or NoQ Service would violate any law within of that jurisdiction. Any diversion of the Software, Materials and/or NoQ Service contrary to United States law is prohibited.
16.2 Software from the Site may further be subject to United States export controls. No Software from the Site may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
17. Term and Termination.
17.1 These TOU, and your right to access and use the Site, are effective until terminated by either you or NoQ. You may terminate these TOU at any time by discontinuing use of the Site and destroying all materials obtained from or through the Site, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise.
17.2 These TOU, and your access to and/or use of the Site, may be terminated by NoQ immediately without notice to you for any reason including, but not limited to, if in NoQ’s sole discretion you fail to comply with any term or provision of these TOU, provide false, inaccurate or misleading information, commit fraudulent acts, transmit any computer virus or malicious code, allow anyone else to have or use your payment methods or password details, or tamper, hack modify, or otherwise corrupt the security or functionality of the NoQ Service. Upon termination, you must destroy all materials obtained from or through the Site, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise.
17.3 Subject to the terms of these TOU, all provisions of these TOU relating to ownership, limitations of liability, confidentiality, indemnification and other provisions which by their nature survive termination of these TOU shall survive termination of these TOU.
18. Michigan Law and Jurisdiction.
In order to ensure consistency in the interpretation and enforcement of these TOU and NoQ’s rights in the Site, these TOU will be governed exclusively by Michigan law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You expressly agree that any litigation arising between you and NoQ related, in any way, to the Site and/or these TOU, and/or any and all disputes, actions, claims, or causes of action related thereto, shall be initiated and maintained only in the U.S. District Court for the Eastern District of Michigan, Southern Division, and/or the Circuit Court of the County of Washtenaw, Michigan. You expressly consent and irrevocably submit to the exclusive personal jurisdiction and venue of such courts.
19. Notice and Procedure for Making Claims of Copyright Infringement.
19.1 If you have a comment, dispute or complaint about the NoQ Service or believe your account may be subject to an unauthorized transaction, account takeover or other type of fraudulent activity, you must contact NoQ immediately. You can notify NoQ about your account or NoQ Services as follows: Mail: NoQ, Inc., 912 N. Main Street, Suite 200, Ann Arbor, MI 48104.
19.2 NoQ may give notice to NoQ’s users by means of a general notice on this Site, electronic mail to a user's e-mail address on NoQ’s records, or by written communication sent by first-class mail to a user's address on NoQ’s records.
If any provision of these TOU is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent necessary to be valid and enforceable, and all other provisions of these TOU shall remain in full force and effect.
The failure of NoQ to enforce any right or provision in these TOU shall not constitute a waiver of such right or provision unless acknowledged and agreed to by NoQ in writing. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of these TOU.
The relationship between you and NoQ is that of independent contractor. No joint venture, partnership, employment, or agency relationship exists between you and NoQ as a result of these TOU or your access to the Site. Neither party has the authority to create any obligations for the other, or to bind the other to any representation, statement or document.