Up In Smoke Food Truck
Online Ordering Powered by eHungry
TERMS OF SERVICE
Last Updated: May 24, 2021
The Up In Smoke Food Truck website and online ordering system is operated by eHungry on behalf of Up In Smoke Food Truck (“Restaurant”).
To make these Terms of Service (the “Terms”) easier to read, we will refer to eHungry (including our directors, officers, members, managers, employees, service providers, affiliates, successors and assignees) as “our”, “we”, or “us”, and we will refer to individuals who place an order or make a purchase from a Restaurant through the Service (including you) as “you,” “Restaurant Customer,” or “User(s)”.
These Terms apply when you access or use the Restaurant website and/or online ordering system located at order.ehungry.com/UpInSmokeFoodTruck (the “Site”, a component of the Service), or in any way use or access any other components or features of the Service, if any and when available. The Restaurant may also have additional terms of service that apply to orders and purchases you make with the Restaurant. Please contact the Restaurant directly with any questions.
By using the Service, you accept and agree to be bound and abide by these Terms. Certain features of the Service may be subject to additional guidelines, terms, or rules, which may be set forth in a separate agreement, or posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms. If you do not agree to these Terms, you must not access or use the Service.
We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of the Service after the date such revised Terms are posted.
ABOUT THE SERVICE
eHungry provides a web-based platform through which Restaurants can provide online ordering for their customers, and which allows customers to connect with restaurants to place orders for pickup, dine-in and/or delivery. Restaurant Customers may, but do not need to, create an account to place an order with a Restaurant through the system.
The “Service” includes (a) the Site; (b) the online ordering system, tools, features, and services provided and/or made available through the Site; and (c) all Content (as defined below) provided and/or made available through the Site.
ELIGIBILITY & USER REPRESENTATIONS
The Service is intended for users who are at least 18 years old. You must be at least 18 years old to register for an account and to use the Service. By using the Service, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the eligibility requirements in these Terms. IF YOU DO NOT MEET ALL OF THE ELIGIBILITY REQUIREMENTS IN THESE TERMS, YOU SHALL NOT ACCESS OR USE THE SERVICE.
By using the Service, you represent and warrant that: (1) you have the legal capacity and you agree to comply with these Terms; (2) you are not a minor in the jurisdiction in which you reside; (3) if you use the Service on behalf of a company or other legal entity, you have the authority to act on behalf of such entity and its affiliates; (4) you will not access the Service through automated or nonhuman means, whether through a bot, script, or otherwise; (5) you will not use the Service for any illegal or unauthorized purpose; and (6) your use of the Service will not violate any applicable law or regulation.
The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, any User who chooses to access the Service from other locations does so on their own initiative and is solely responsible for compliance with local laws, if and to the extent local laws are applicable.
PAYMENT PROCESSING PRACTICES FOR RESTAURANT CUSTOMERS
If you use the Service as a Restaurant Customer your order and payment information will be sent to the Restaurant to fulfill your order. You understand and agree that you are solely responsible for all orders you submit, and for the accuracy of any and all information and data that you provide to us when placing an order through the Service. After an order is finalized for processing, you may not be able to cancel the order or make any changes to the order. If you are a Restaurant Customer and you have a question or dispute related to an order you placed, you must contact the Restaurant directly.
eHungry uses third-party intermediaries to manage credit card processing. The payment processing intermediaries may store, retain, or use credit card and other billing information to process orders in connection with the Service. In addition, any Restaurant to which you submit an order may store, retain, or use your credit card or other billing information to process and fulfill your order. eHungry will make reasonable efforts to maintain the confidentiality of all credit card any payment information that is submitted by you and/or processed through the Service, and we expect and require our Restaurants to do the same. However, we cannot control the actions of all Restaurants and/or third-party intermediaries, and we cannot guard against or prevent all possible breaches of our systems by third parties who may attempt to gain access to the Service through unauthorized and/or illegal methods. eHungry shall not be liable to any User or any third party for any loss, damage, misuse, or unauthorized access of any information contained in or related to any User’s account or online order(s), including credit card information and personal information of any Restaurants or Restaurant Customers, even if eHungry has been advised of the possibility of such liability.
RELATIONSHIP BETWEEN YOU (THE RESTAURANT CUSTOMER) AND THE RESTAURANT
Although eHungry manages the Restaurant’s website and online ordering system, eHungry is NOT responsible for any of the following:
• Fulfillment of your order, or failure to fulfill your order;
• Delivery of your order, or failure of delivery;
• Quality of your order;
• Updating you about the status of your order;
• Making sure your order is correct;
• Making sure the amount you are charged for your order is correct;
• Issuing refunds if you have an issue with your order;
• Making sure the Restaurant handles your personal information properly and in accordance with applicable laws;
• Any other communications you receive from the Restaurant, such as marketing communications;
If you have questions, concerns, or an issue arises that relates to any of the items listed above, you must contact the Restaurant directly. eHungry cannot address any issues related to items listed above, and we cannot provide a refund unless the Restaurant initiates the refund.
Given the nature of eHungry's role, we will share your personal information with the Restaurant in order to facilitate the ordering process. We have provisions in our agreement with the Restaurant to remind them of their obligations under applicable law and to warn them that they cannot use your personal information to send you spam. However, eHungry CANNOT control what the Restaurant ultimately does with your personal information. If you use the Service and receive unwanted communications from the Restaurant or believe the Restaurant has misused your personal information, you must contact the Restaurant directly.
COMMUNICATIONS ABOUT YOUR ORDER
By placing an order through the Service, you are expressly authorizing eHungry and/or the Restaurant to send you automated or non-automated communications regarding your order and transaction. These automated or non-automated communications may be sent to you via email, phone call, push notification, or text message. For example, eHungry or the Restaurant may contact you to confirm or notify you about the status of your order, notify you that your order is ready for pickup, notify you about the delivery of your order, or to ask you to enter a temporary code to confirm your order. These examples are not-exhaustive, and eHungry or the Restaurant may contact you for any purpose regarding your order and/or transaction.
OUR INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Service is proprietary to and owned by eHungry, and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Service and the trademarks, service marks, and logos contained therein (collectively, the “Content”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. The Content is provided on the Service “AS IS” for your information and personal use only. Except as expressly provided in these Terms, no part of the Service, and no Content, may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission. We reserve all rights not expressly granted to you under these Terms in and to the Service and the Content.
LICENSE TO USE THE SERVICE
Subject to these Terms, we hereby grant you a limited, revocable, personal, non-sublicensable, non-transferable, and non-exclusive license to access and use this Service and the material herein for your limited and personal, access and use. Unless explicitly stated otherwise, any new features we provide that add to or enhance the current Services shall also constitute the “Service” and shall be subject to these Terms. We reserve the right to refuse service to anyone for any reason at any time. We may, in our sole discretion, terminate your right to use the Service with or without cause at any time, and may prevent your future use of the Service. You may also terminate this Agreement by simply discontinuing use of the Service. The limitations on your use of the Service shall survive such termination, and you agree to be bound by those terms. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
We reserve the right, but not the obligation, to: (1) monitor the Service for violations of these Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) your account, or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Service or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Service in a manner designed to protect our rights and property and to facilitate the proper functioning of the Service.
You may not access or use the Service for any purpose other than that for which we make the Service available. The Service may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a User of the Service, you agree not to:
• License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by this TOS.
• Use the Service to process data on behalf of any third party without such third parties’ consent.
• Systematically retrieve data or other content from the Service to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
• Make any unauthorized use of the Service, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
• Circumvent, bypass, disable, or otherwise interfere with security related features of the Service, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Service and/or the Content.
• Use any other user’s account to process orders and/or obtain sensitive account information of other users.
• Copy or adapt the Service’s software, or engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining and extraction tools.
• Interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service.
• Use the Service or any information obtained from the Service in order to harass, abuse, or harm another person.
• Use the Service as part of any effort to compete with us or otherwise use the Service and/or the Content for any revenue generating endeavor or commercial enterprise.
• Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Service.
• Delete the copyright or other proprietary rights notice from any Content.
• Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material that makes automated use of the Service or interferes with any party’s uninterrupted use and enjoyment of the Service or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site or App.
• Use the Service in a manner inconsistent with any applicable laws or regulations.
COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
Restaurant Customers are generally not able to post content anywhere on the Service. However, for the purpose of being thorough and clear, we provide this DMCA takedown notice for your reference. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to the Company’s designated copyright agent at email@example.com.
• the date of your notification;
• a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
• a description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
• information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
• a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
THIRD-PARTY WEBSITES AND CONTENT
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, revise, update, suspend, discontinue, or remove the Content and any features or portions of the Service at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information or features available in connection with the Service. We also reserve the right to modify or discontinue all or part of the Service without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Service.
We cannot guarantee the Service will be available at all times. We may encounter unexpected technical problems or need to conduct maintenance related to the Service, which may result in interruptions, delays, or errors. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Service during any downtime or discontinuance of the Service. Nothing in these Terms will be construed to obligate us to maintain and support the Service or to supply any corrections, updates, or releases in connection with the Service.
These Terms and your use of the Service are governed by and construed in accordance with the laws of the State of North Carolina applicable to agreements made and to be entirely performed within the State of North Carolina, without regard to its conflict of law principles.
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms (each a "Dispute" and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT THIS PROVISION AFFECTS YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA Rules or applicable law, the arbitration will take place in Wake County, North Carolina. Except as otherwise provided herein, the parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Wake County, North Carolina, and the parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts.
In no event shall any Dispute brought by either Party related in any way to the Site or Service be commenced more than (one) 1 year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
The parties agree that any arbitration shall be limited to the Dispute between the parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a classaction basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Arbitration
The parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
THE SERVICE IS PROVIDED ON AN AS-IS AND AS -AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE, CONTENT, OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
YOU ACKNOWLEDGE THAT eHungry IS INDEPENDENT OF ALL RESTAURANTS WHICH MAY MAKE USE OF THE SERVICE AT ANY GIVEN TIME, AND eHungry DOES NOT REPRESENT ANY RESTAURANT IN CONNECTION WITH THE SERVICE. eHungry MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY INTERACTION OR TRANSACTION BETWEEN ANY USER, RESTAURANT, AND/OR RESTAURANT CUSTOMER, REGARDLESS OF USE OF THE SERVICE BY ANY USER, RESTAURANT, OR RESTAURANT CUSTOMER.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL eHungry OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; SO, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, due to or arising out of: (1) use of the Service; (2) breach of these Terms ; (3) any breach of your representations and warranties set forth in these Terms; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; or (5) violation of your rights by a third party, including but not limited to intellectual property rights. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Service, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Service, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 9525210 or (916) 4451254.
These Terms and any policies or operating rules posted by us on the Service or in respect to the Service constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Service. You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.
In order to resolve a complaint regarding the Service or to receive further information regarding use of the Service, please contact us at:
Our full details are:
Legal entity: Order Online, Inc.
Email address: firstname.lastname@example.org
Postal address: 8480 Honeycutt Rd. Suite 200 Raleigh, NC 27615
Phone: (888) 439-2246