THE PORT SUPPLY LLC
Effective Date: May 4, 2020
2. SERVICES PROVIDED BY TPS
TPS is a virtual advertising and marketing platform that connects users to independently-operated restaurants, markets and other retailers (the “Merchant(s)”) for the purpose of purchasing takeout food, beverages and other retail products. TPS is not a restaurant, market or retailer itself and does not prepare or manufacture any of the products offered by the Merchants. Although your satisfaction is our priority, if you have any problems with the service or product offered by a Merchant, you should contact the Merchant directly. Any order you place is between you and the Merchant from which you order, and TPS is not an actual party to any such order.
Merchants are solely responsible for complying with all applicable laws, rules and regulations and standards—including, but not limited to, those pertaining to the preparing, sale of, marketing, and packaging all products ordered through TPS, and updating their menus, product inventories and prices, as applicable. Each Merchant is solely liable for the quality, safety, and freshness of its products, and TPS does not verify the credentials, representations, products, services or prices offered by the Merchants, and does not guarantee the quality of the product or services, or that any Merchant product service complies with applicable laws. TPS will not be liable or responsible for any products or services provided by Merchants that are a cause of injury or that are unacceptable to or do not meet your expectations in any manner.
The Merchants are each independent contractors that have entered into agreements with TPS to provide takeout food and related services. TPS itself does not offer any preparation or provision of takeout food services and has no responsibility or liability for any Merchant. TPS will not be liable or responsible for any services provided by Merchants or any errors or misrepresentations made by them. Merchants are required to comply with all applicable laws, rules and regulations.
3. TPS ACCOUNT REGISTRATION
4. ACCOUNT ACCESS
The Services are offered and available only to users who are eighteen (18) years of age or older. By using this Website, you represent and warrant that: (i) you are of legal age to form a binding contract with TPS; and (ii) that you have not previously been suspended or removed from the Services. If you do not meet the foregoing requirements, you must not access or use the Services.
5. TERMINATION OF TPS ACCOUNTS
You may terminate your TPS Account at any time by accessing your account settings on the Website. Any fees paid by you prior to your termination are nonrefundable (except as expressly permitted otherwise by these TERMS). Termination of your TPS Account will not relieve you of any obligation to pay any accrued fees or charges. We may at any time, under any circumstances and without prior notice, immediately terminate or suspend all or a portion of your TPS Account and/or access to the Services. Any such termination or suspension will be made by us in our sole discretion, without any refund to you of any prepaid fees or amounts, and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your TPS Account and/or access to the Services. Upon termination of your TPS Account, you lose all access to the Services and any portions thereof. In addition, TPS may delete all information and data stored in or as a part of your TPS Account. Any individual components of the Service that you may have used subject to separate agreement will also be terminated in accordance with such separate license.
6. UPDATES TO TERMS
We may revise and update these TERMS from time to time in our sole discretion. We will post the revised date of these TERMS as revised. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions contained in the TERMS will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Website. Your continued use of the Website following the posting of revised TERMS constitutes your acceptance of any changes.
7. TRANSACTIONS INVOLVING ALCOHOLIC BEVERAGES
TPS does not sell, offer to sell or solicit sales of alcohol. However, TPS may connect users with Merchants that hold alcohol beverage licenses, and some jurisdictions may allow you to order and pick up alcoholic beverages from such Merchants. In such cases, TPS acts only as a third-party provider and has no responsibility or liability to you for any alcoholic beverage products you purchase. Any claims or disputes you have regarding Alcoholic Beverage Supplier products will be the responsibility of the Merchant and must be brought by you directly to that Merchant.
If you place an order that includes any alcoholic beverage, you represent and warrant that you are at least twenty-one (21) years of age. Upon pickup of the order, you shall present government-issued identification evidencing your age consistent with applicable legal requirements. You further agree that a Merchant may withhold delivery of the alcoholic beverages if you or the recipient of the order appears intoxicated at such time. If you do not comply with these terms, you agree that any alcoholic beverage will not be released to you, and you may forfeit the cost of such beverages.
8. PROHIBITED USES
You may use the Services only for lawful purposes and in accordance with these TERMS. You agree not to use the Services:
We cannot and do not assure that other users are or will be complying with the foregoing limitations on use and rules of conduct or any other provisions of these TERMS, and, as between you and us, you assume all risk of harm or injury resulting from any such lack of compliance.
Violations of any of these TERMS may result in termination of your account.
9. INTELLECTUAL PROPERTY RIGHTS
All information, software, text, photos, materials, functions and other content (the “Content") contained on the Website and/or the Services are owned by or licensed to TPS. The Content is our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, slogans, service marks, trade names, logos, and trade dress are proprietary to us and/or our licensors or licensees. Except as we specifically agree in writing, no Content may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Services, not even as part of a derivative work.
10. THIRD-PARTY LINKS AND AGREEMENTS
TPS does not examine, warrant or endorse any third-party sites and apps to which the Services link and is not liable for your use of them.
11. PRIVACY AND COMMUNICATIONS
12. PAYMENT AND FEES
You agree to pay all service charges, including gratuities, fees and taxes, and any part thereof, when you purchase, use, or participate in Services from TPS. When paid by you, these payments are final and non-refundable, unless otherwise determined by TPS, in its sole discretion. ALL FEES ARE EXCLUSIVE OF APPLICABLE FEDERAL, STATE OR LOCAL TAXES, UNLESS OTHERWISE STATED, AND YOU ARE SOLELY RESPONSIBLE FOR THE PAYMENT OF ANY SUCH TAXES THAT MAY BE IMPOSED ON YOUR USE OF THE SERVICES PROVIDED TO YOU. TPS reserves the right to change or establish fees for the Services at any time and further reserves the right to consolidate or otherwise incorporate such fees into the prices listed by the Merchants through the Services.
13. CREDIT CARD OR OTHER PAYMENT SERVICE AUTHORIZATION
You may be asked to provide us with a credit card number from a card issuer or other payment information that we accept in order to activate and/or pay for any fees related to the Services. We may seek pre-authorization of your credit card or other payment information prior to a purchase to verify that the credit card or payment information is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
14. USER CONTRIBUTIONS
The Services may contain interactive features such as, without limitation, user reviews and ratings, user profiles or the ability to bookmark Merchants (“Interactive Features”). By using or participating in the Interactive Features, you grant TPS a non-exclusive, irrevocable, perpetual, transferable, worldwide license to use, display, publish, copy, create derivative works from and distribute the content you provide (“User Contributions”). TPS takes no responsibility and shall not be liable for any User Contributions posted, stored, transmitted or uploaded to the Services by you or any third party or for any loss or damage thereto or thereby; nor shall TPS be liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity or profanity you may encounter.
You represent and warrant that: (i) You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our licensees, successors and assigns; (ii) all of your User Contributions do and will comply with the TERMS. You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not TPS, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness. Although TPS has no obligation to screen, edit or monitor any User Contributions, TPS reserves the right, and has absolute discretion, to remove, screen, translate or edit without notice any User Contributions posted or stored on the Services at any time and for any reason, or to have such actions performed by third parties on their behalf, and you are solely responsible for creating backup copies of and replacing any of your User Contributions at your sole cost and expense.
15. DISCLAIMER OF WARRANTIES
TPS PROVIDES THE SERVICES "AS IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSABLE BY APPLICABLE LAW, TPS AND ITS AFFILIATES, SUBSIDIARIES, MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN PARTICULAR, TPS AND ITS AFFILIATES, SUBSIDIARIES, MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE VOUCHERS OR OTHER ITEMS PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TPS AND ITS AFFILIATES, SUBSIDIARIES, MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES—INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF TPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) ANY CHANGES MADE TO THE SERVICES OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICES OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICES; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL TPS'S LIABILITY IN CONNECTION WITH ANY SERVICE, INCLUDING ANY VOUCHER, EXCEED THE AMOUNT PAID FOR ANY SUCH SERVICE BY YOU.
You agree to defend, indemnify and hold harmless TPS and its parents, subsidiaries, representatives, affiliates, members, managers, officers, and directors from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of the TERMS or your use of the Services—including, but not limited to, any use of the Website's content and any use or consumption of products or services offered by the Merchants.
You acknowledge and agree that in the provision of any food or beverage, the applicable Merchant shall be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by you, caused in whole or in part by the Merchant, as well as for any unclaimed property liability arising from unredeemed orders or portions thereof. You waive, and release TPS and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from or related to any act or omission of a Merchant in connection with the goods provided in connection therewith and/or as it relates to compliance with applicable laws.
FURTHER, YOU ACKNOWLEDGE AND AGREE THAT TPS RELIES UPON THE MERCHANTS (BEING RESTAURANTS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS) TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. TPS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
19. DISPUTES; ARBITRATION
“Disputes” are defined as any claim, controversy, or dispute between you and TPS, its partners (or their respective affiliates, agents, managers, members, directors, officers or employees) including any claims relating in any way to these TERMS, any Additional Terms, or the Services, or any other aspect of our relationship. At TPS’s sole discretion, it may require you to submit any disputes arising from the use of these TERMS or the Website, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Massachusetts Law.
20. APPLICABLE LAW; TIME LIMITATION ON CLAIMS
21. ENTIRE AGREEMENT
The TERMS and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and TPS regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services. In the event of a conflict between these TERMS and any other TPS agreement or Policy, these TERMS will prevail and control the subject matter of such conflict.
22. WAIVER AND SEVERABILITY
No waiver by TPS of any term or condition set forth in these TERMS shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of TPS to assert a right or provision under these TERMS shall not constitute a waiver of such right or provision.
If any provision of TERMS is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the TERMS will continue in full force and effect.
23. CONTACT US
If you have any questions or comments regarding the TERMS, please visit the “Contact Us” page on the Website for additional information.