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Consumer Terms of Use

These are the terms of use of the QuickEATS at Simon, The Galleria, HG GALLERIA LLC, a Delaware limited liability company (“Channel Sponsor”) ordering services provided by Avanti Commerce Inc. (“Avanti”) in connection with the Avanti online order distribution platform (“Platform”) which allows you to order products or services from one or more stores and operators of such stores ("Stores"). Orders will be placed through digital means such as a Website or App operated by the Store or by Avanti ("Site"). These terms of use (this “Agreement”) are a legal contract between you with Avanti and you with Stores.

Stores and the Channel Sponsor may or may not be owned by the same party. Channel Sponsor(s) within which the Stores are located have authorized Avanti; (i) to provide this ordering service to you and, (ii) to use the Channel Sponsor’s and Store's brand names in providing this ordering service.

BY USING THE CHANNEL SPONSOR ORDERING SERVICE, YOU ARE ACCEPTING THESE TERMS (INCLUDING THE PRIVACY POLICY). IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN DO NOT USE THE ORDERING SERVICE. IF YOU DO NOT ACCEPT THESE TERMS YOU CANNOT USE ANY OF THE SITES, INCLUDING PLACING ANY ORDER USING THE ORDERING SERVICE.

If you are using the Channel Sponsor service on behalf of an organization or entity (“Organization”), then you are agreeing to this Agreement on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to this Agreement. In that case, “you” and “your” refers to you and that Organization.

As used in this Agreement, “Avanti”, “we”, “us”, and “our” mean Avanti Commerce Inc. and its subsidiaries and affiliates.

The Stores available on our Sites operate independently from Avanti and have entered into agreements with us to provide the products or services available to you. Those Stores must comply with all applicable laws. Avanti is not responsible for the Stores and does not verify their compliance with any applicable laws, rules, regulations or standards.


Access to and Use of the Sites

Your Access to the Sites: You may access some areas of the Sites without making an Order or registering for an Account with us. Most areas of the Sites are open to everyone.

Your Responsibilities: You are responsible for making all arrangements necessary for you to have access to the Sites or to use the Channel Sponsor service. You are also responsible for ensuring that each person who accesses any Site or uses the Channel Sponsor service through your Internet connection is aware of this Agreement and that they comply with them.

Capacity and Age: By placing an Order through the Sites using the Channel Sponsor service, you warrant that you are the age of majority in the jurisdiction where you live and that you are legally capable of entering into binding contracts.

Mobile Devices: Access to and use of the Sites and related Channel Sponsor service using a mobile device (whether using a mobile app or the mobile web version of the Sites or Channel Sponsor service) requires use of a mobile device and wireless mobile data service, which you are responsible for obtaining from your wireless carrier, and which may require Internet access, which must be obtained from your service provider. You are responsible for obtaining and paying for such additional services and obtaining a suitable device, including all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Sites, including administrative messages, service announcements and diagnostic data reports from Avanti, a Store, your mobile carrier or third-party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Channel Sponsor service. You are solely responsible for obtaining any additional subscription or connectivity services or the equipment necessary to access the Sites. You agree that you will not operate a motor vehicle while accessing the Sites in any way.

Incompatible Devices: The Sites may not be accessible from or otherwise work with all computers, browsers, devices or all mobile carriers. Avanti makes no representation, warranty or condition that the Sites will be compatible with or provided by all computers, browsers, devices or mobile carriers.

Fees: If fees are charged for the Sites, or other third-party service providers charge a fee for the products or services they provide, then you agree to pay such fee to the respective party in exchange for your continued use of such products or services. Some services may be subject to different or additional terms (including fees), to which you will be required to agree prior to your use of such services.

Personal Information: Some functionality of the Sites or Channel Sponsor services may require you to provide information to Avanti or the Stores. All such information is governed under the terms of Avanti’s Privacy Policy which is Exhibit A to these terms.


Account Creation and Management

Account Creation: You do not need to register or create an account in order to use the Sites or the Channel Sponsor service. However, you will have the option to register and create an account (“Account”). To register and create an Account, you may use either "social login" (i.e. login through any social media account of Yours) or you must create a unique username and password and provide certain personal information. We encourage you to use “strong” passwords that use a combination of upper- and lower-case letters, numbers and symbols. In consideration of the use of the Sites and Channel Sponsor service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration screen, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current and complete. If you provide any information that is false, inaccurate or incomplete, or Avanti has reasonable grounds to suspect that such information is false, inaccurate, not current or incomplete, then Avanti has the right to block your current or future use of the Sites or Channel Sponsor service.

Confidentiality and Security of Account: If you create an Account, then you are responsible for maintaining the confidentiality and security of your Account and password and for all activities or any other actions that occur under or are taken in connection with your password or Account. You agree to (a) immediately notify the Store or Avanti of any known or suspected unauthorized use of your password or Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password or credit card information; and (b) ensure that you exit from your Account at the end of each session. Avanti is not liable for any injury, loss or damage arising from or relating to your failure to comply with the requirements in this paragraph or for any acts or omissions by you or someone else using your Account and/or password.


How to Place an Order and How it is Processed

Your Order and accuracy of information: Once you have selected the products or services provided by the Store (together, “Products”) you wish to order (“Order”) from your chosen Store and have provided the other required information, you will have the opportunity to submit your Order by selecting the “proceed”, “place my order” or other similarly named button. Ensure that you check all the information you entered for your Order and that you correct any errors before you select this button.

If you provide inaccurate information or do not comply with Order terms (e.g. provide wrong address, mobile contact information or is not present to receive delivery) under certain circumstances you may still be liable for payment.

Amending or Canceling your Order: Once you submit your Order and your payment has been authorized, most orders cannot be changed or cancelled, and you are not entitled to receive a refund. In some cases, larger orders can be adjusted if the lead time is at least two business days. If you want to change or cancel your Order, then you must contact the specific Store you selected as your pick-up or delivery location. However, there is no guarantee that the Store will agree to your requested change or cancellation as the Store may have already started processing your Order.

Payment Authorization: If your payment method for your Order is not authorized, then you will receive a notification to that effect and your Order will not be processed or communicated to the relevant Store.

Processing your Order: On receipt of your Order, we will begin processing it by sending it to the relevant Store and will notify you by email, SMS or “push” notification that your Order has been received and is being processed. Any confirmation page that you may see on a Site and any Order confirmation e-mail that you may receive each merely indicates that your Order has been received and is being processed by us, and does not necessarily mean that your Order has been accepted by the Store. We encourage all our Stores to accept all Orders and to communicate any rejection promptly, and we will notify you as soon as reasonably practicable if a Store rejects your Order. However, Stores have the discretion to reject Orders at any time and for any reason.

Delivery of your Order: Where and when applicable, estimated times for deliveries and pick-ups are provided by the Stores and are only estimates. Neither Avanti nor any Store guarantees that any Order will be delivered or will be available for pick-up within the estimated times.


Price and Payment

Taxes, Delivery and Online Payment Costs: Prices for Products will be as quoted on the Sites by the Store. These prices will have applicable taxes applied at checkout, but may exclude delivery costs (if you opt for delivery instead of pick-up) and any online payment administration charges (if you pay for your Order online). These will be added to the total amount due where applicable.

Incorrect pricing: The Sites contain a large number of menus of Products and it is possible that some menus may include one or more incorrect prices. If the correct price for an Order is higher than the price stated on the Sites, we will normally contact you before the relevant Order is fulfilled. In such an event, neither we nor the relevant Store is under any obligation to ensure that the Order is provided to you at the incorrect lower price or to compensate you in respect of incorrect pricing.

Payment methods: You may pay for your Order using an accepted form of electronic tender or by using credit or debit card through the Sites, or if the Store supports cash payment, in-cash at the Store at the point of fulfillment to you.

Electronic Tender Payments: If you pay by electronic credit, debit, gift or points (where applicable), you may be required to show the card to the Store at the time of fulfillment as proof of identification and so that they can check the card conforms with the receipt data for the Order. From time to time there may be delays with the processing of card payments and transactions; this may result in payments taking up to 60 days to be deducted from your bank account or charged to your credit or debit card.

Credit and Discount Codes: A credit or discount may apply to your Order if you use a valid promotional code recognized by the Sites or the Channel Sponsor service and accepted by the Store at which you place your Order, and if you pay for any balance owing by credit or debit card. Under standard banking procedures, your bank or card issuer will initially “pre-authorize” the full amount of your Order (before any credit or discount is applied) in your account for a period of typically up to 5 working days (and in some cases up to 30 days, depending on your bank or card issuer), and so this amount will be unavailable in your account for that period. The credit or discount will be applied at the time your bank or card issuer transfers the funds for your Order to the Store, at which point the credit or discounted amount will not be transferred to the Store and will instead be released back into your available balance by your bank or card issuer. Neither Avanti nor the relevant Store is responsible or liable to you for any delay by your bank or card issuer in releasing any funds back into your account.

Rejected Orders: Under standard banking procedures, once you submit your Order that you are paying for by electronic tender, and your payment has been authorized, your bank or card issuer will “authorize” the full amount of your Order. If your Order is subsequently rejected by the Store or cancelled for any other reason, then your bank or card issuer will not transfer the funds for the Order to the Store, and will instead release the relevant amount back into your available balance. This release process typically takes up to 5 working days (and in some cases up to 30 days, depending on your bank or card issuer). Neither Avanti nor the relevant Store is responsible or liable to you for any delay by your bank or card issuer in releasing funds back into your account.

Disputes: Before seeking any chargebacks from your payment processor You will communicate with Avanti in a reasonable manner so we can attempt to discover what went wrong and whether there is any way to resolve errors (if any). You will refer any disputes you may have about your Order and the way in which your Order was processed for payment either to the Store to the debit, credit or other payment processor you used for payment of your Order.


Availability and Security

Website Availability: While we try to ensure the Sites or the Channel Sponsor service are normally available 24 hours a day, we do not undertake any obligation to do so, and we will not be liable to you if one or more Sites are unavailable at any time or for any period.

Suspension of Access: Access to the Sites or the Channel Sponsor service may be suspended temporarily at any time and without notice.

Information Security: The transmission of information via the Internet is not completely secure. Although we take the steps required by law to protect your information, we cannot, and do not, guarantee the security of your data transmitted to any Sites or by way of the Channel Sponsor service. Any such transmission is at your own risk.


Alcoholic Beverages Policy

Some jurisdictions permit the ordering and delivery of alcoholic beverages. In those jurisdictions, if you place an Order that includes any alcoholic beverage, you warrant that you are at least the age of majority in that jurisdiction (21 years of age in the United States; 19 years of age in all Provinces and Territories of Canada, except in Alberta, Manitoba, Ontario, Prince Edward Island, Quebec and Saskatchewan, where the age of majority is 18 years). Upon delivery or pickup, as applicable, you must present at least one piece of government-issued identification bearing your picture and your name and evidencing your age. If you do not comply with these terms, the alcoholic beverage(s) will not be released to you, and you will forfeit the cost of such beverages.


Governing Law and Jurisdiction

Governing Law. If you are using this ordering service in Canada this Agreement and any disputes arising under or related to this Agreement and/or our Privacy Policy and the Sites will be governed by the laws of the Province of British Columbia, Canada, without regard to conflicts of laws principles. If you are using this ordering service in the United States this Agreement and any disputes arising under or related to this Agreement and/or our Privacy Policy and the Sites will be governed by the laws of the King County, WA, without regard to conflicts of laws principles.

Dispute Resolution: In the unlikely event that you and Avanti are not able to resolve a dispute after attempting to do so informally, that dispute (excluding any Avanti claims for injunctive or other equitable relief) then if you are in Canada this dispute will be finally resolved by binding arbitration using the rules of the British Columbia Commercial International Arbitration Association (“BCICAC”) in the city of Vancouver, British Columbia under the commercial rules then in effect for the, BCICAC except as provided below. If you are in the United States this dispute will be finally resolved by binding arbitration using the rules of the American Arbitration Association (“AAA”) in the city of Seattle, WA under the commercial rules then in effect for the AAA except as provided below.

The award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this paragraph will be deemed to prevent Avanti from seeking injunctive or other equitable relief from the courts as necessary to protect any of Avanti’s proprietary interests. ALL CLAIMS RELATING TO THIS AGREEMENT, OUR PRIVACY POLICY AND/OR THE SITES MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT, YOU AND AVANTI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.


Disclaimers

Site information: While we try to ensure that information on the Sites is correct, we make no representation, warranty or condition that it is accurate or complete. We may make changes to the material on the Sites, Products and prices on the Sites at any time without notice. The material on the Sites may be out of date, and we make no commitment to update that material. Reference to any Product, process, publication or service of any Stores or other third party by trade name, domain name, trademark, service mark, logo, manufacturer, or otherwise does not constitute or imply its endorsement or recommendation by Avanti. Avanti does not verify, and makes no representation, warranty or condition concerning, the adequacy of any information, facts, views, opinions, statements or recommendations provided by the Stores, whether contained on or accessible through the Sites.

Menu Information: The item names, descriptions, prices, special offer information, and other information from the Stores menus ("Menu") displayed on or accessible through the Sites or the Channel Sponsor service are provided to us by the Stores. The Stores are responsible for providing their Menu to us and for ensuring that it is accurate and current, and Avanti does not undertake any such responsibility. If you have any concerns about allergy warnings, contents of a dish or any other Menu information, then you should confirm with the Stores directly before placing your Order.

Stores Actions and Omissions: the legal contract for the supply and purchase of Products is between you and the Stores with which you place your Order. Avanti has no control over the actions or omissions of any Stores. Any ill effect from Products, including but not limited to food poisoning, intoxication, sickness, or allergic reaction shall not be the fault or responsibility of Avanti. You expressly and voluntarily assume any risk related to the consumption of food or drink that you Ordered. Without limiting the generality of the foregoing, by using a Site you acknowledge and accept the following:

  • Avanti makes no representation, warranty or condition that any Products ordered from any Stores through a Site will be of satisfactory quality or suitable for your purpose.
  • Estimated times for deliveries and pick-ups are provided by the Stores are only estimates. Neither we nor the Stores guarantee that Orders will be delivered or will be available for pick-up within the estimated times.
  • We encourage all our Stores to accept all Orders provided to them and to communicate any rejection promptly, and we will notify you by email as soon as reasonably practicable if a Stores rejects your Order. However, we do not guarantee that a Stores will accept all Orders, and Stores have the discretion to reject Orders at any time and for any reason.
  • The foregoing exclusions and disclaimers do not affect your legal rights against any Stores.

Exclusion of Terms: WE PROVIDE ACCESS TO THE SITES AND THE PLATFORM TO YOU ON THE CONDITION THAT THE CHANNEL SPONSOR ORDER SERVICE, SITES, AND ALL OTHER CONTENT ON THE SITES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AVANTI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CHANNEL SPONSOR SERVICE, AND ALL OTHER CONTENT ON THE SITES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AVANTI MAKES NO REPRESENTATION, WARRANT OR CONDITION THAT THE SITES, THE CHANNEL SPONSOR SERVICE, AND/OR THE OTHER CONTENT ON THE SITES WILL BE SECURE, UNINTERRUPTED AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED AND/OR THAT THE CHANNEL SPONSOR SERVICE, SITES, AND/OR OTHER CONTENT ON THE SITES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. YOU (AND NOT AVANTI) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE CHANNEL SPONSOR SERVICE, SITES, AND/OR OTHER CONTENT ON THE SITES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT FULLY APPLY TO YOU.

No Oral Terms: No oral or written information or advice given by Avanti or an authorized representative of Avanti will be deemed to alter these disclaimers and exclusions, or to create any representation, warranty or condition.


Limitation of Liability

Neither Avanti nor any Store is responsible for any resulting damage to your device or computer from any virus, bug, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure, or any other technical or other malfunction. Avanti makes no representation, warranty or condition regarding the suitability, functionality, performance, availability, or operation of any of the Sites or the Channel Sponsor service. The Sites or the Channel Sponsor service may be temporarily unavailable due to maintenance, malfunction of computer equipment or other reasons.

YOU AGREE THAT AVANTI IS NOT LIABLE TO YOU FOR ANY DAMAGES, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, RESULTING IN ANY WAY FROM OR IN CONNECTION WITH: (a) THE SITES, THE PLATFORM AND/OR ANY CONTENT; (b) ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OR CONTENT OF THE SITES OR THE CHANNEL SPONSOR SERVICE; (c) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY AVANTI, LAW ENFORCEMENT OR OTHER AUTHORITIES REGARDING YOUR USE OF THE CHANNEL SPONSOR SERVICE, THE SITES OR THE CONTENT; (d) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OWNERS; OR (e) THE CONDUCT, ACTIONS OR INACTIONS OF ANY USERS OF THE SITES, THE CHANNEL SPONSOR SERVICE OR YOUR INTERACTIONS OR RELATIONSHIPS WITH SITES USERS, EVEN IF AVANTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE OR THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE CHANNEL SPONSOR SERVICE, THE SITES OR ITS RELATED INFORMATION OR PROGRAMS.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN REPRESENTATIONS, WARRANTIES AND CONDITIONS, OR THE DISCLAIMER OF SOME TYPES OF DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.


Indemnification

You agree to indemnify, defend and hold harmless Avanti and its agents, employees, representatives, licensors, affiliates, officers and directors from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) resulting or arising from any third-party claim in connection with (a) any information you (or anyone accessing or using a Sites or Channel Sponsor service using your password) submit or transmit through the Sites or Channel Sponsor service, (b) your use of or access to the Sites or Channel Sponsor service, (c) your violation of this Agreement, (d) your violation of any rights of any third party, or (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the Sites or Channel Sponsor service.


Links to Other Sites

The Sites may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and that may be subject to additional terms and conditions (“Third-Party Websites”). Avanti does not review, monitor, operate and/or control any Third-Party Websites and Avanti makes no guarantees, representations and/or warranties as to, and has no liability for, the content available on or through and/or the functioning of the Third-Party Websites. By providing access to Third Party Websites, Avanti is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access and/or use of the Third-Party Websites, including providing information, materials and/or other content to the Third-Party Websites, is entirely at your own risk. Avanti reserves the right to discontinue links to any Third-Party Websites at any time and for any reason, without notice.


Violations of this Agreement

Avanti reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including without limitation the right to block access to the Sites or Channel Sponsor service from a particular account, device and/or IP address.


Changes to Terms

We may change this Agreement from time to time and without prior notice. If we make a change to this Agreement, it will be effective as soon as we post it, and the most current version of this Agreement will always be posted under the “Terms of Use” tab (“Updated Terms”). If we make a material change to the Agreement, we may notify you. You must review this Agreement periodically. By continuing to access and/or use the Sites after we post Updated Terms, you agree to be bound by the Updated Terms, and if you do not agree to the Updated Terms, then you must stop using the Sites. This Agreement will govern any disputes arising before the effective date of the Updated Terms.


EXHIBIT A - PRIVACY POLICY