Terms of Service
Effective: December 17, 2020
THIS TERMS OF SERVICE (together with Business Terms
below) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU OR USER AND XOOK INC., A DELAWARE CORPORATION (“XOOK,” “WE,” “US,” OR “OUR”). PLEASE READ THE TERMS AND CONDITIONS CAREFULLY.
This Agreement applies to your access or use of the Xook websites, mobile sites, and applications (collectively, the “Sites”) and the contents, features, communications (e.g., emails, phone calls, and texts) and services (collectively, the “Services”) made available by Xook. Xook Services are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein (the "Terms"). Your use of the Services constitutes your agreement to all such Terms. Please read these terms carefully, and keep a copy of them for your reference. By accessing or using the Services, you are agreeing to these Terms, which form a legally binding contract with Xook. DO NOT ACCESS OR USE THE SERVICES IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THE TERMS.
, which also governs the Site and informs users of our data collection practices.
2. Electronic Communications
Visiting Xook Sites or sending emails to Xook constitutes electronic communications, You consent to receive electronic communications and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
3. Your Account
If you use Xook Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Xook is not responsible for third-party access to your account that results from theft or misappropriation of your account. Xook and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.
Our Services are not intended for children under 13 years of age and we do not knowingly collect personally identifiable information from children under the age of 13. If you are under the age of 13, you must ask your parent or guardian for permission to use Xook Services.
5. Links to third-party Sites/third-party Services
Xook Sites may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of Xook Inc and Xook is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Xook is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Xook of the site or any association with its operators.
Certain services made available via our Sites are delivered by third-party sites and organizations. By using any product, service, or functionality originating from our Sites, you hereby acknowledge and consent that Xook may share such information and data with any third-party with whom Xook has a contractual relationship to provide the requested product, service, or functionality on behalf of Site users and customers.
6. No Unlawful or Prohibited Use/Intellectual Property
All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Sites, are the property of Xook or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends, or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Sites. Xook content is not for resale. Your use of the Sites does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use and will make no other use of the content without the express written permission of Xook and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Xook or our licensors except as expressly authorized by these Terms.
7. Businesses are Independent
You understand and agree that Xook provides a technology platform connecting you with independent food service providers (“Businesses”). You acknowledge and agree that Xook does not itself prepare food or offer delivery services, and has no responsibility or liability for the acts or omissions of any Business. Xook is a technology platform facilitating the transmission of Orders from Users to Businesses for pickup or delivery. Xook will not assess or guarantee the suitability, legality, or ability of any Business. You agree that Xook is not responsible for the Businesses' food preparation or the safety of the food or whether the photographs or images displayed through the Services accurately reflect the food prepared by the Businesses and/or delivered by the Businesses, and does not verify Businesses’ compliance with applicable laws or regulations. Xook has no responsibility or liability for acts or omissions by any Business.
8. Payment Policy
8.1. No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. Xook has no obligation to provide refunds or credits but may grant them, in each case in Xook's sole discretion.
8.2. Prices and Charges. Prices and charges displayed through Xook Services are controlled and managed by Businesses. You understand that prices displayed at Xook may different from prices offered by the same Business on different websites or mobile apps. Xook has no obligation to itemize its costs or margins when publishing prices. Xook reserves the right to change such prices at any given time without any notice, at its discretion.
8.3. Loyalty points. Loyalty points earning and redeemption are managed by Businesses. Xook has no obligation to provide refunds of Loyalty points or change Loyalty points. Loyalty points will expire in 12 months.
8.4. Fees for Services. Xook may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, and Surge Fees. Xook may also charge Businesses with fees on orders that you place through the Services, including commissions and other fees, and may change those Business fees as we deem necessary or appropriate for our business or to comply with applicable law.
8.5. Payment Charges. Xook will charge, and you authorize Xook to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, Xook 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.
9. Use of Communication Services
Xook Sites may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). You agree to use the Communication Services only to post, send, and receive messages and material that are proper and related to the particular, Communication Service.
By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded; restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including e-mail addresses, without their consent; violate any applicable laws or regulations.
Xook has no obligation to monitor the Communication Services. However, Xook reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Xook reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Xook reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in Xook's sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Xook does not control or endorse the content, messages, or information found in any Communication Service and, therefore, Xook specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and Business owners are not authorized Xook spokespersons, and their views do not necessarily reflect those of Xook.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction, and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.
10. User Content Policy
The Services may permit you to submit, transmit, post or otherwise provide content, including, but not limited to, reviews, comments, ratings, photos, images, videos, sounds, text, data, links and location information; send emails and other communications; and submit suggestions, ideas, comments, questions, or other information (“User Content”). Any such User Content must not be illegal, threatening, obscene, racist, defamatory, libelous, pornographic, infringing of intellectual property rights, promoting of illegal activity or harm to groups and/or individuals, invasive of a third party’s publicity or privacy rights, purposely false or otherwise injurious to third parties, or objectionable and must not consist of or contain software, computer viruses, commercial solicitation, political campaigning, chain letters, mass mailings, any form of “spam” or references to illegal activity, malpractice, purposeful overcharging, false advertising, or health code violations (e.g., foreign objects in food, food poisoning, etc.). Your User Content should be unbiased and objective. You may not submit reviews, comments or ratings for which you are being compensated in any manner, or for your own Business or any Business of your employer, friend, relative or competitor. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. The name or handle you choose to provide to Xook may be displayed publicly with such User Content. Xook reserves the right (but has no obligation) to monitor, remove, or edit User Content in Xook’s sole discretion, including if User Content violates this Agreement (including any Xook Policies), but you acknowledge that Xook may not regularly review submitted User Content. If you do submit User Content, and unless we indicate otherwise, you grant Xook a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable (through multiple tiers, including Business owners, partners and other third-party websites and feeds) right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, display, and otherwise exploit such User Content throughout the world in any media, and, where applicable, you hereby waive any privacy or publicity rights or any similar rights in an individual’s name or likeness in addition to any moral or other rights you may have in the User Content you submit in favor of Xook. You represent that you own, or have the necessary permissions to use and authorize the use of User Content as described herein. Xook takes no responsibility and assumes no liability for any User Content submitted by you or any other User or third-party, nor do we guarantee any confidentiality with respect to User Content.
No compensation will be paid with respect to the use of your Submission, as provided herein. Xook is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Xook's sole discretion.
11. Modifications to Services
Xook reserves the right, in its sole discretion, to modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the Xook Sites, and/or Merchants. Xook shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.
12. Technology Requirements
13. Use Restrictions
13.1. You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, Xook employees, or our community.
13.2. You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third-party, including privacy or publicity rights.
13.3. You will only access the Services using means explicitly authorized by Xook.
13.4. You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
13.5. You will not use the Services to cause nuisance, annoyance or inconvenience.
13.6. You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Merchant, user or Contractor, unless Xook has given you prior permission to do so in writing.
13.7. You will not copy or distribute the Software or any content displayed through the Services, including Merchants’ menu content and reviews, for republication in any format or media.
13.8. You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
13.9. The information you provide to us when you register for an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
13.10. You will keep secure and confidential your account password or any identification credentials we provide you which allow access to the Services.
13.11. You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third-party.
13.12. You will not use the Services in any way that could damage, disable, overburden or impair any Xook server, or networks connected to any Xook server.
13.13. You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any Xook server.
13.14. You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures Xook may use to prevent or restrict access to the Services or use of the Services or the content therein.
13.15. You will not use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or Xook Content, except as expressly authorized by Xook.
13.16. You will not reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law.
13.17. You will not conduct any systematic retrieval of data or other content from the Services.
13.18. You will not try to harm other Users, Xook, or the Services in any way whatsoever.
13.19. You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
14. International Users
The Service is controlled, operated and administered by Xook from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Xook Content accessed through the Sites in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
You agree to indemnify, defend and hold harmless Xook, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney's fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third-party, or your violation of any applicable laws, rules or regulations. Xook reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Xook in asserting any available defenses.
In the event the parties are not able to resolve any dispute between them arising out of or concerning these Terms and Conditions, or any provisions hereof, whether in contract, tort, or otherwise at law or in equity for damages or any other relief, then such dispute shall be resolved only by final and binding arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered by the American Arbitration Association, or a similar arbitration service selected by the parties, in a location mutually agreed upon by the parties. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms and Conditions, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees. The parties agree to arbitrate all disputes and claims in regards to these Terms and Conditions or any disputes arising as a result of these Terms and Conditions, whether directly or indirectly, including Tort claims that are a result of these Terms and Conditions. The parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. This arbitration provision shall survive the termination of these Terms and Conditions.
17. Class Action Waiver
Any arbitration under these Terms and Conditions will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, unless both you and Xook agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
18. Liability Disclaimer
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. XOOK INC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
XOOK INC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. XOOK INC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
19. Termination/Access Restriction
Xook reserves the right, in its sole discretion, to terminate your access to the Sites and the related services or any portion thereof at any time, without notice.
20. No-Show Policy
Xook is committed to providing superior quality services to Users and Merchants. Your account will be suspended If you failed to pick up your order 3 times in 12 months period. You may not be restored once suspended. You understand and agree that any Payment charges made for No-Show will not be refunded.
21. Alcohol Policy
Some jurisdictions permit the ordering and delivery of alcoholic beverages. In such jurisdictions, if you place an order that includes any alcoholic beverage, you represent and warrant that you are at least 21 years of age. Upon delivery or pickup, as applicable, you shall present a government-issued identification card, evidencing your age, consistent with applicable legal requirements. You also agree that any Business store or our Delivery Partners may withhold delivery of the alcoholic beverages if you appear or the recipient of the delivery appears intoxicated when receiving delivery of such products. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you may forfeit the cost of such beverages.
22. Choice of Law
To the maximum extent permitted by law, this agreement is governed by the laws of the State of California and you hereby consent to the exclusive jurisdiction and venue of courts in California in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Xook as a result of this agreement or use of the Site. Xook's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Xook's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Xook with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Xook with respect to Xook Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Xook with respect to the Xook Service. A printed version of this agreement and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
23. Additional Terms for Business Accounts (Xook for Business)
This is "Business Terms", in addition to the Terms of Service above, govern your access to and use of your Business Account. In the event of any conflict between these Business Terms and the Terms of Service, the Business Terms apply.
In order to access Business Account or Xook for Business or be a partner with Xook, you understand and agree that
- Xook provides a technology platform connecting your Business with the consumer (“Users”). You acknowledge and agree that Xook does not itself prepare food or offer delivery services, and has no responsibility or liability for the acts or omissions of your Business. Xook is a technology platform facilitating the transmission of Orders from Users to Businesses for pickup or delivery. You agree that Xook is not responsible for your Business' food preparation or the safety of the food or whether the photographs or images displayed through the Services accurately reflect the food prepared by your Business and/or delivered by your Business, and does not verify your Business’ compliance with applicable laws, taxes or regulations. It is your responsibility to be compliance with any laws, taxes, and regulations. Xook has no responsibility or liability for acts or omissions by your Business.
- You have the authority to act on behalf of the Business and bind the Business to the Business Terms
- You allow Xook to showcase your Business information and allow Xook to place an order on behalf of your Business
- Xook will not monitor the accuracy of your Business content and you are responsible for correctness, completeness, and accuracy of the contents for your Business
- You will honor and fulfill the order placed at Xook (web, mobile and store), responsible for the quality of the order and resolve any issue related to the order
- You are responsible for preparing the food and delivering the food to the Users. Xook is not responsible for preparing and delivery of the food to the Users.
- You are responsible for updating order statuses promptly and correctly to provide correct up-to-date information to the Users. You understand and agree that failure to update order statuses correctly will result in delays in payment and automatic cancellation of orders.
- You will honor loyalty, promotion, or any incentive applied at Xook (web, mobile and store) on behalf of your Business
- You will access your Business account only in the capacity of an authorized representative of your Business
- You grant Xook a non-transferable, non-exclusive, royalty-free limited license to display your public website on the Services, or allow for its display through iframes or other framing technology
- You agree that we may contact you, including by phone, email, text or postal mail, using the contact information you provide us, make publicly available, or that we have on record for your business, and that our communications (including phone calls) with you may be monitored and recorded for quality purposes
- You will not use the Consumer Site (Xook website, mobile apps) for business activities, including but not limited to flagging reviews or messaging people who have reviewed your Business or your Business's Competitor
- You will not use any Xook trademark or service mark in any manner without Xook's prior written consent
- You will not misrepresent your identity or affiliation to anyone in connection with Xook
- Fees for Xook Services (“Xook fee”). Xook may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Service Fees, Small Order Fees, and Surge Fees. Xook may also charge Businesses with fees on orders placed through the Xook Services, including commissions and other fees, and may change those Business fees as we deem necessary or appropriate for our business or to comply with applicable law.
- 3rd party Payment processing fees. Xook partners with 3rd party payment processor to process payments including credit cards, Apple Pay, and Google Pay. You understand and agree to pay payment fees imposed by 3rd party payment processor. Xook reserves the right to change such fees at any given time without any notice, at its discretion.
- You understand and agree that the Xook fee and 3rd party payment processing fees are not refundable.
24. Changes to Terms
Xook reserves the right, in its sole discretion, to change the Terms under which the Sites are offered. The most current version of the Terms will supersede all previous versions. Xook encourages you to periodically review the Terms to stay informed of our updates.