Protecting your private information is our priority. This Statement of Privacy applies to Where’s The Foodtruck, LLC and governs data collection and usage. For the purposes of this Privacy Policy, unless otherwise noted, all references to Where’s The Foodtruck, from here forward referred to as WTF, include WTF!?! Where’s The Foodtruck?, wtfWheresTheFoodtruck.com, WheresTheFoodtruck.com, and both the customer and vendor facing mobile applications named Where’s The Foodtruck. The WTF website is an e-commerce site. By using the WTF, you consent to the data practices described in this statement and in our Terms & Conditions section.

Collection of your Personal Information

In order to better provide you with products and services offered on our Site, WTF may collect personally identifiable information, such as your:

 –          First and Last Name

 –          Mailing Address

 –          E-mail Address

 –          Phone Number

If you purchase WTF’s products and services, we collect billing and credit card information. This information is used to complete the purchase transaction.

Please keep in mind that if you directly disclose personally identifiable information or personally sensitive data through WTF’s public message boards, this information may be collected and used by others.

We do not collect any personal information about you unless you voluntarily provide it to us. However, you may be required to provide certain personal information to us when you elect to use certain products or services available on the Site. These may include: (a) registering for an account on our Site; (b) entering a sweepstakes or contest sponsored by us or one of our partners; (c) signing up for special offers from selected third parties; (d) sending us an email message; (e) submitting your credit card or other payment information when ordering and purchasing products and services on our Site. To wit, we will use your information for, but not limited to, communicating with you in relation to services and/or products you have requested from us. We also may gather additional personal or non-personal information in the future.

Use of your Personal Information

WTF collects and uses your personal information to operate its website(s) and mobile applications and deliver the services you have requested.

WTF may also use your personally identifiable information to inform you of other products or services available from WTF and its affiliates.

Sharing Information with Third Parties

WTF does not sell, rent or lease its customer lists to third parties.

WTF may, from time to time, contact you on behalf of external business partners about a particular offering that may be of interest to you. In those cases, your unique personally identifiable information (e-mail, name, address, telephone number) is transferred to the third party. WTF may share data with trusted partners to help perform statistical analysis, send you email or postal mail, provide customer support, or arrange for deliveries. All such third parties are prohibited from using your personal information except to provide these services to WTF, and they are required to maintain the confidentiality of your information.

WTF may disclose your personal information, without notice, if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on WTF or the site; (b) protect and defend the rights or property of WTF; and/or (c) act under exigent circumstances to protect the personal safety of users of WTF, or the public.

Tracking User Behavior

WTF may keep track of the websites and pages our users visit within WTF, in order to determine what WTF services are the most popular. This data is used to deliver customized content and advertising within WTF to customers whose behavior indicates that they are interested in a particular subject area.

We use common analytics and tracking data for the purpose of identifying which vendors and services are most useful to customers. This is also used to streamline the site and our mobile applications for the best user experience.

Automatically Collected Information

Information about your computer hardware and software may be automatically collected by WTF. This information can include: your IP address, browser type, domain names, access times and referring website addresses. This information is used for the operation of the service, to maintain quality of the service, and to provide general statistics regarding use of the WTF website.

Use of Cookies

The WTF website uses “cookies” to help you personalize your online experience. A cookie is a text file that is placed on your hard disk by a web page server. Cookies cannot be used to run programs or deliver viruses to your computer. Cookies are uniquely assigned to you, and can only be read by a web server in the domain that issued the cookie to you.

One of the primary purposes of cookies is to provide a convenience feature to save you time. The purpose of a cookie is to tell the Web server that you have returned to a specific page. For example, if you personalize WTF pages, or register with WTF site or services, a cookie helps WTF to recall your specific information on subsequent visits. This simplifies the process of recording your personal information, such as billing addresses, shipping addresses, and so on. When you return to the same WTF website, the information you previously provided can be retrieved, so you can easily use the WTF features that you customized.

You have the ability to accept or decline cookies. Most Web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you choose to decline cookies, you may not be able to fully experience the interactive features of the WTF services or websites you visit.

Links

These website(s) and mobile applications contain links to other sites. Please be aware that we are not responsible for the content or privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of any other site that collects personally identifiable information.

Security of your Personal Information

WTF secures your personal information from unauthorized access, use, or disclosure. WTF uses the following methods for this purpose:

 –          SSL Protocol

When personal information (such as a credit card number) is transmitted to other websites, it is protected through the use of encryption, such as the Secure Sockets Layer (SSL) protocol.

We strive to take appropriate security measures to protect against unauthorized access to or alteration of your personal information. Unfortunately, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, you acknowledge that: (a) there are security and privacy limitations inherent to the Internet which are beyond our control; and (b) security, integrity, and privacy of any and all information and data exchanged between you and us through this Site cannot be guaranteed.

Children Under Thirteen

WTF does not knowingly collect personally identifiable information from children under the age of thirteen. If you are under the age of thirteen, you must ask your parent or guardian for permission to use this website(s) and/or mobile applications.

Opt-Out & Unsubscribe from Third Party Communications

We respect your privacy and give you an opportunity to opt-out of receiving announcements of certain information. Users may opt-out of receiving any or all communications from third-party partners of WTF by contacting us here:

– Email: Contact@WheresTheFoodtruck.com

Data and Account Deletion

At any time, you may request to be removed from our platform and have all of your personally identifiable data permanently removed from our databases. To make your request, write to us at contact@WheresTheFoodtruck.com and include the email address that your account is linked to (Google, Facebook, Apple ID, or email address).

E-mail Communications

From time to time, WTF may contact you via email for the purpose of providing announcements, promotional offers, alerts, confirmations, surveys, and/or other general communication. In order to improve our Services, we may receive a notification when you open an email from WTF or click on a link therein.

If you would like to stop receiving marketing or promotional communications via email from WTF, you may opt out of such communications by clicking on the UNSUBSCRIBE button within the email itself or by contacting us here:

– Email: Contact@WheresTheFoodtruck.com

External Data Storage Sites

We may store your data on servers provided by third party hosting vendors with whom we have contracted.

Changes to this Statement

WTF reserves the right to change this Privacy Policy from time to time. We will notify you about significant changes in the way we treat personal information by sending a notice to the primary email address specified in your account, by placing a prominent notice on our site, and/or by updating any privacy information on this page. Your continued use of the Site and/or Services available through this Site after such modifications will constitute your: (a) acknowledgment of the modified Privacy Policy; and (b) agreement to abide and be bound by that Policy.

Contact Information

WTF welcomes your questions or comments regarding this Statement of Privacy. If you believe that WTF has not adhered to this Statement, please contact WTF at:

Where’s The Foodtruck, LLC

1453 Summer Glow Ave

Henderson, Nevada 89012

Email Address:

Contact@WheresTheFoodtruck.com

Effective as of August 27^th, 2018

Welcome, foodie! We’re happy you’re here and can’t wait to help you find foodtruck happiness. Before you use the WTF Platform, please read these Terms of Use carefully.

WTF WHERES THE FOODTRUCK LLC and its subsidiaries and affiliates (“WTF,” “Company,” “we,” “our,” or “us”) own and operate certain websites, including related subdomains; our mobile, tablet and other smart device applications; application program interfaces; in-store kiosks or other online services; other tools, technology and programs (collectively, the “ WTF Platform”) and all associated services (collectively, the “ WTF Services”); in each case, that reference these Terms of Use. These 

These Terms of Use (the “Agreement”) constitute a contract between you and us that governs your access and use of the WTF Platform and WTF Services. What does that mean? It means that by accessing and/or using the WTF Platform or WTF Services, or by clicking a button or checking a box marked “I Accept” (or something similar), you agree to all the terms and conditions of this Agreement. If you do not agree, do not use the WTF Platform or WTF Services. As used in this Agreement, “you” means any visitor, user, or other person who accesses the WTF Platform or WTF Services; whether or not such person registered for an Account (as defined below). Unless otherwise agreed by WTF in a separate written agreement with you or your authorized representative, the WTF Platform is made available solely for your personal, non-commercial use.

IMPORTANT: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH WTF THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WTF ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST WTF. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

1. ABOUT WTF.

WTF is a virtual marketplace platform that connects food truck fans with mobile food vendors (“Foodtrucks,” “vendors,” or “seller”) and independent delivery service providers (“DSP”). You are able to locate vendors, deals, daily specials, local events and order food through the WTF Platform from participating vendors in cities throughout the United States and other territories where WTF provides such Services (collectively, the “Vendors”).

WTF is not a Vendor, mobile food vendor, or food preparation entity. The Vendors available on the WTF Platform operate independently of WTF. Vendors are required to comply with federal, state, and local laws, rules, regulations, and standards pertaining to the preparation, sale, and marketing of food, including, without limitation, food preparation and safety and menu disclosure. WTF is not liable or responsible for Vendors’ food preparation or safety and does not verify their compliance with all applicable laws. In addition, WTF does not guarantee the quality of what the Vendors sell, nor does it guarantee the services provided by them, including, without limitation, in those cases where they provide the delivery services or engage another third-party delivery service provider. WTF does not independently verify, and is not liable for, representations made by Vendors regarding their food, including, without limitation, any menu- or Vendor-level descriptors or disclosures.

WTF is not a delivery service provider or a common carrier. Some deliveries are provided by WTF’s network of independent delivery service providers (“DSP”). DSP have entered into agreements with WTF which require them to comply with all applicable federal, state, and local laws, rules and regulations, including, without limitation, traffic laws, requirements of the applicable motor vehicle agency, and applicable insurance requirements. By accessing the WTF Platform, you agree and acknowledge that DSP are solely responsible for, and WTF shall not be liable or responsible for, the delivery services provided to you by any DSP or any subcontractors of DSP, or any acts, omissions, errors or misrepresentations made by any DSP.

2. USING WTF.

You may only create and hold one account on the WTF Platforms (each, an “Account”) for your personal use. You may have another Account if you are using the WTF Platform for business purposes, including as part of an enterprise Account, pursuant to a separate agreement with WTF. In consideration of the use of the WTF Platform and the WTF Services, you agree that you are able to create a binding legal obligation with WTF, and you also agree to: (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update the personal information you provide to keep it true, accurate, current, and complete.

If you are a minor in the jurisdiction in which you reside (generally under the age of 18), you must have the permission of, and be directly supervised by, your parent or legal guardian to use the WTF Platform, and your parent or legal guardian must read and agree to this Agreement prior to your using the WTF Platform. Notwithstanding the foregoing, you are not authorized to use the WTF Platform or otherwise access the WTF Services if you are under the age of 13. If you are using the WTF Platform on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to this Agreement and you agree to be bound by this Agreement on behalf of that entity, organization, or company. If you provide any information that is untrue, inaccurate, not current or incomplete, including, without limitation, having an invalid or expired payment method on file, or if WTF has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, WTF has the right to block your current or future use of the WTF Platform and/or the WTF Services (or any portion thereof) and/or terminate this Agreement with you. If your Account is cancelled for any or no reason, you may forfeit any pending, current, or future account credits, other promotional offers, and any other forms of unredeemed value in or associated with your Account without prior notice to you.

You are responsible for maintaining the confidentiality and security of your Account including your password and, if applicable, any password for Facebook, Google, or other third party login. You are also responsible for all activities or any other actions that occur under or that are taken in connection with your Account. You agree to: (a) immediately notify WTF of any known or suspected unauthorized use(s) of your password or Account, or any known or suspected breach of security, including, without limitation, 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. WTF will not be liable for any injury, loss, or damage of any kind arising from or relating to your failure to comply with (a) and/or (b) or for any acts or omissions by you or someone else who is using your Account and/or password.

3. OUR ALCOHOLIC BEVERAGES 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 our DSP 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.

4. PAYMENT AND OUR CREDIT POLICY.

Certain features of the WTF Platform, including, without limitation, the placing or receipt of orders, may require you to make certain payments, including commissions or other fees. When paid by you, these payments are final and non-refundable, unless otherwise determined by WTF. WTF, in its sole discretion, may offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged. WTF Vendors, in their sole discretion, may also offer credits or refunds on a case-by-case basis including, by way of example, in the event of an error with your order or in the amounts you were charged. WTF cannot control whether a Vendor issues any form of credit or refund.

WTF will charge, and you authorize WTF to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, WTF 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. In the event WTF advances payment for any of your orders placed via the WTF Platform (e.g., if you sign up for a corporate account), WTF may separately send you invoices for payment of those advanced amounts. In the event that you fail to pay such invoices within thirty (30) days of the date of such invoice (the “Payment Due Date”), you grant WTF the right, but not the obligation, to charge the credit card you provide with your Account at any time after any Payment Due Date, unless prohibited by law. Please note, you are unable to complete checkout with only gift card information. In all events, you are required to provide another form of payment to submit an order, even if this payment method is not charged. 

WTF reserves the right to establish, remove, and/or revise prices, fees, taxes, and/or surcharges for any or all services or goods obtained through the use of the WTF Services at any time, and further reserves the right to consolidate or otherwise incorporate fees and/or surcharges into the prices listed for Vendor food and beverage items. WTF may also, in its sole discretion, make  promotional offers with different features and different rates available to any or all of our users. Unless made available to you, these promotional offers will have no bearing on your obligation to pay the amounts charged. 

The provider of WTF Services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

5. OUR MATERIALS AND LICENSE TO YOU.

With the exception of Your Content (defined below), the WTF Platform and everything on it, including, without limitation, text, photos, videos, graphics and software, (collectively, the “Materials“) is owned by or licensed to WTF. The WTF Platform and the Materials are protected by copyright, trademark, trade dress, domain name, patent, trade secret, international treaties, and/or other intellectual or proprietary rights and laws of the United States and other countries. Except as otherwise indicated on the WTF Platform and except for the intellectual property of other companies that are displayed on the WTF Platform, all intellectual property, such as trademarks, service marks, logos, trade dress, and trade names are proprietary to WTF. Accordingly, you are not authorized to download any content from the WTF Platform, including, without limitation, the Materials, and if you do, WTF will not be responsible in any way for any damage to your computer system or loss of data that results from such download. Please also be advised that WTF enforces its intellectual property rights to the fullest extent of the law.

Subject to your compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the WTF Platform for your personal and noncommercial use, solely as expressly permitted by this Agreement and subject to all the terms and conditions of this Agreement, all applicable intellectual property laws, and any Additional Terms (as defined below) contained on the WTF Platform. Any other use of the WTF Platform is strictly prohibited. Nothing contained on the WTF Platform and/or Materials should be interpreted as granting to you any license or right to use any of the Materials (other than as provided herein) and/or third-party proprietary content on the WTF Platform without the express written permission of WTF or the relevant third-party owner, as applicable. Any rights not expressly granted herein are reserved by WTF and WTF’s licensors.

6. YOUR CONTENT AND CONDUCT.

6.1 Your Conduct.

By accessing the WTF Platform or the WTF Services, you agree:

• to comply with the Agreement and all applicable laws, rules and regulations in connection with your use of the WTF Platform and WTF Services, including, without limitation, laws regarding online conduct and Your Content (as defined below);
• not to use the WTF Platform or WTF Services for any commercial or other purposes that are not expressly permitted by this Agreement or in a manner that falsely implies our endorsement, partnership or otherwise misleads others as to your affiliation with us;
• not to access the WTF Platform or WTF Services using a third party’s account/registration without the express consent of the Account holder and not to attempt to impersonate another user or person;
• not to avoid, bypass, remove, deactivate, impair, descramble, or attempt, through any means, to circumvent any technological measure implemented by WTF to protect the WTF Platform, or otherwise attempt to gain unauthorized access to any part of the WTF Platform and/or any WTF Service, other Account, computer system, and/or network connected to any WTF server;
• not to use the WTF Platform or WTF Services in any manner that could damage, disable, overburden, and/or impair the WTF Platform, any WTF server, or the network(s) connected to any WTF server, and/or interfere with any other party’s use and enjoyment of the WTF Platform;
• not to advertise to, or solicit, any user, Vendor, or other business to buy or sell any products or services, or use any information obtained from the WTF Platform or the WTF Services in order to contact, solicit, or advertise or sell to any user, Vendor, or other business, in each case, unless specifically authorized in writing by WTF;
• not to deep-link to or frame the WTF Platform and/or access the WTF Platform manually and/or with any robot, spider, web crawler, extraction software, automated process, and/or device or other means to scrape, copy, and/or monitor any portion of the WTF Platform and/or any Materials and/or other content on the WTF Platform, unless specifically authorized in writing by WTF;
• not to conduct any scraping, indexing, surveying, data mining, or any other kind of systematic retrieval of data or other content from the WTF Platform;
• not to create or compile, directly or indirectly, any collection, compilation, database, or directory from the WTF Platform or Materials;
• not to create Vendor reviews or blog entries for or with any commercial or other purpose or intent that does not in good faith comport with the purpose or spirit of the WTF Platform;
• not to copy, publish, or redistribute any coupon or discount code or act in bad faith in an attempt to manipulate or gain an unintended commercial benefit from incentive offers;
• not to harass, annoy, intimidate, or threaten any WTF employees, contractors, or agents engaged in providing any portion of the WTF Services;
• not to engage in any criminal or tortious activity, including, without limitation, fraud, spamming (including, without limitation, by email or instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or otherwise deleting the copyright or other proprietary rights notice from any of Your Content (as defined below) or from any portion of the WTF Platform or the WTF Services;
• not to rent, lease, redistribute, sell, sublicense, decompile, reverse engineer, disassemble, or otherwise reduce the WTF Platform and/or the Materials, in whole or in part, to a human-perceivable form for any purpose, including, without limitation, to build a product and/or service competitive with the WTF Platform and its Services; and
• not to disrupt, interfere with, or otherwise harm or violate the security of the WTF Platform, or any WTF Services, system resources, accounts, passwords, servers or networks connected to or accessible through the WTF Platform or affiliated or linked sites (including, without limitation, those of our Vendors).

You agree to comply with the above conduct requirements, and agree not assist or permit any person in engaging in any conduct that does not comply with the above conduct. Further, you agree that the consequences of commercial use or re-publication of Your Content or Materials from the WTF Platform or other violations of the foregoing proscriptions may be so serious and incalculable that monetary compensation may not be a sufficient or appropriate remedy, and that WTF will be entitled to temporary and permanent injunctive relief to prohibit such use or activity without the need to prove damages.

6.2 Content You Provide.

WTF may provide you with interactive opportunities (i) on the WTF Platform, including, without limitation, features such as user ratings and reviews, saved favorites, liked items, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through push notifications, text (“SMS”) or multimedia (“MMS”) messages (collectively, “Interactive Areas”). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to WTF through the WTF Platform or otherwise in connection with your use of our Services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login (“Your Content”). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a WTF user, textual, visual, or audio content and information, whether transmitted via the WTF Platform, SMS or MMS message, or otherwise.

6.3 Use of Your Content.

You grant WTF an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use Your Content in connection with WTF’s or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”). The Uses include, without limitation, use of your username and/or other user profile information such as your ratings history and how long you have been a WTF user, to attribute Your Content to you on the WTF Platform, including in Interactive Areas and other public areas on our Platform, or otherwise in connection with our Services. All Uses will be made without notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Further, if you provide any suggestions, input, or other feedback relating to the WTF Platform or the WTF Services we provide (collectively, the “Feedback”), WTF shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant WTF a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.

You further understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. WTF and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for the action of any and all third parties with respect to Your Content, or for any damages you allege to incur as a result of or relating to any third-party content.

6.4 Conduct within Interactive Areas.

By transmitting Your Content, you agree to follow the standards of conduct below, and any additional standards that may be stated on the WTF Platform. We expect your cooperation in upholding our standards. You are responsible for all of Your Content. You agree that Your Content will not:

• be unlawful, harmful to adults or minors, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, profane, offensive, invasive of another’s privacy, hateful, and/or racially, ethnically, and/or otherwise objectionable;
• have a commercial, political, or religious purpose;
• be false, misleading, and/or not written in good faith;
• infringe any patent, trademark, trade secret, copyright, right of privacy and/or publicity, and/or other proprietary rights of any person and/or entity;
• be illegal and/or promote illegal activity;
• contain unauthorized advertising and/or solicits users to a business other than those on the WTF Platform; and/or
• be intended to interrupt, destroy, or limit the functionality or integrity of any computer software, hardware, or Materials on the WTF Platform or other websites.

We do our best to encourage civility and discourage disruptive communication on the WTF Platform. We also do our best to discourage communications that incite others to violate our standards. WTF may monitor any and all use of the WTF Platform, including, without limitation, interactions between our users; however, we are under no obligation to do so. We may manage the WTF Platform in a manner intended to protect our property and rights and to facilitate the proper functioning of the WTF Platform. If any of Your Content or conduct on our Platform violates our standards, or any other terms of this Agreement; or interferes with other peoples’ enjoyment of the Materials or our Platform or Services; or is inappropriate in our judgment; we reserve the right, in our sole discretion and without notice to you, (i) to change, delete or remove, in part or in full, any of Your Content, and (ii) to terminate or suspend access to any Interactive Areas or any other part of our Platform. WTF will cooperate with local, state, and/or federal authorities to the extent required by applicable law in connection with Your Content.

6.5 Ratings and Reviews.

The WTF Platform and other Interactive Areas may allow you to rate (each, a “Rating”) and post reviews (each, a “Review”) of Vendors. Such Ratings and Reviews are considered Your Content and are governed by the terms and conditions of this Agreement. Ratings and Reviews are not endorsed by WTF, and do not represent the views of WTF or of any affiliate or partner of WTF. WTF does not assume liability for Ratings and Reviews or for any claims, liabilities, or losses resulting from any Ratings and Reviews. We strive to maintain a high level of integrity with our Ratings and Reviews and other aspects of Your Content. Therefore, all Ratings and Reviews must comply with the following criteria: (1) before posting a Rating or Review, you must have had first-hand experience with the Vendor within the 7-day period prior to your review; (2) you may not have a proprietary or other affiliation with either the Vendor or any of its competitors; (3) you may not draw any legal conclusions regarding the Vendors’ products, services, or conduct; and (4) your review must otherwise comply with the terms of this Agreement. Any Rating and/or Review that we determine, in our sole discretion, could diminish the integrity of the Ratings and Reviews, the Materials and/or the WTF Platform may be removed or excluded by us without notice.

7. COMMUNICATIONS & TEXT MESSAGES.

By voluntarily providing your cell phone number to WTF, you agree that WTF may contact you by telephone, SMS, or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, operational, or informational purposes. Further, the Vendor with whom you place a mobile order shall have access to your phone number for means of communication regarding your order. 

When placing orders through the WTF Platform, you may receive two or more order status push notifications. Additionally, you may receive communications from WTF following receipt of a completed order soliciting feedback and/or other information relating to the order. We discourage disabling these. If you choose to disable these, you may do so in the Settings section of the WTF Customer App.

Please note that by disabling such push notifications will no longer receive order status update notifications for any mobile orders placed via the WTF Platform until you enable these once again.

If you change or deactivate the phone number you provided to WTF, you have an affirmative obligation to update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive WTF’s standard push notifications, SMS or MMS messages unless you also disable or unsubscribe via the above procedures.

Standard data and message rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your mobile phone carrier for details. Your mobile phone carrier (e.g. T-Mobile, AT&T, Verizon, etc.) is not liable for delayed or undelivered messages.

8. ADDITIONAL TERMS FOR MOBILE APPLICATIONS.

We may make available software to access WTF’s websites, technology platforms, and related online and mobile services via a mobile device (“Mobile Applications”). To use any Mobile Application, you must use a mobile device that is compatible with that Mobile Application. WTF does not warrant that any Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. WTF hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on a mobile device owned or leased solely by you, for your personal use. You acknowledge that WTF may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of any Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree to timely upgrade the Mobile Application in the event there is no automatic update. You further agree that the terms and conditions of this Agreement will apply to all upgrades to the Mobile Applications. Any third party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and WTF or its third party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties, or obligations hereunder, except as expressly provided for in this Agreement, is void. WTF reserves all rights not expressly granted under this Agreement with respect to the Mobile Applications and otherwise. If any Mobile Application is being acquired on behalf of the United States Government, then the following provision applies: The Mobile Application will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR § 227.7202 and FAR § 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the WTF Platform and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originate in the United States, and are subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the WTF Platform.

The following applies to any Mobile Application you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and WTF, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund to you the purchase price for the Apple-Sourced Software; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to WTF as provider of the software. You acknowledge that Apple is not responsible for addressing any of your claims or those of any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to WTF as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, WTF, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and WTF acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary as it relates to your license of the Apple-Sourced Software.

The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and WTF only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) WTF, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to WTF’s Google-Sourced Software.

9. DISCLAIMER.

THE PLATFORM, THE SERVICES, THE MATERIALS, AND ALL OTHER CONTENT ON THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE RELEASED PARTIES DISCLAIM, WITH RESPECT TO THE SERVICES, THE PLATFORM, THE MATERIALS AND ALL OTHER CONTENT ON THE PLATFORM, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WTF DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, THE SERVICES, THE MATERIALS AND/OR THE OTHER CONTENT ON THE PLATFORM WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WTF DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR ANY OTHER CONTENT ON THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF A DELIVERY ORDERED ON THE PLATFORM, AND/OR THE FOOD OR OTHER PRODUCTS DELIVERED. YOU (AND NOT WTF) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RELATING TO YOUR USE OF THE PLATFORM, THE SERVICES, THE MATERIALS, AND/OR OTHER CONTENT ON THE PLATFORM. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.

WTF SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND WTF’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WTF IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

WTF RELIES UPON VENDORS AND OTHER THIRD-PARTY FOOD AND BEVERAGE PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. WTF 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.

10. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL WTF BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF WTF HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE WTF PLATFORM OR BY WTF. WTF ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE WTF PLATFORM. WTF ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE WTF PLATFORM, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS PLATFORM, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL WTF’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO WTF OR A WTF VENDOR, IF ANY, OR (B) $1,000 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.

YOU AND WTF AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND WTF AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WTF PLATFORM AND SERVICES.

IMPORTANT NOTE TO NEW JERSEY CONSUMERS

IF YOU ARE A CONSUMER RESIDING IN NEW JERSEY, THE FOLLOWING PROVISIONS OF THESE TERMS OF USE DO NOT APPLY TO YOU (AND DO NOT LIMIT ANY RIGHTS THAT YOU MAY HAVE) TO THE EXTENT THAT THEY ARE UNENFORCEABLE UNDER NEW JERSEY LAW: (A) THE DISCLAIMER OF LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, NEW JERSEY PRODUCTS LIABILITY ACT, NEW JERSEY UNIFORM COMMERCIAL CODE, AND NEW JERSEY CONSUMER FRAUD ACT); (B) THE LIMITATION ON LIABILITY FOR LOST PROFITS OR LOSS OR MISUSE OF ANY DATA (FOR EXAMPLE, TO THE EXTENT UNENFORCEABLE UNDER THE NEW JERSEY IDENTITY THEFT PROTECTION ACT AND NEW JERSEY CONSUMER FRAUD ACT); (C) APPLICATION OF THE LIMITATIONS OF LIABILITY TO THE RECOVERY OF DAMAGES THAT ARISE UNDER CONTRACT AND TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY (FOR EXAMPLE, TO THE EXTENT SUCH DAMAGES ARE RECOVERABLE BY A CONSUMER UNDER NEW JERSEY LAW, INCLUDING, WITHOUT LIMITATION, THE NEW JERSEY PRODUCTS LIABILITY ACT); AND (D) THE NEW YORK GOVERNING LAW PROVISION (FOR EXAMPLE, TO THE EXTENT THAT YOUR RIGHTS AS A CONSUMER RESIDING IN NEW JERSEY ARE REQUIRED TO BE GOVERNED BY NEW JERSEY LAW).

11. THIRD PARTY LINKS.

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

12. ADDITIONAL TERMS.

Your use of the WTF Platform is subject to any and all additional terms, policies, rules, or guidelines applicable to the WTF Services or certain features of the WTF Platform that we may post or link to on the WTF Platform (collectively, the “Additional Terms”), such as end-user license agreements, or other agreements or rules applicable to particular features, promotions, or content on the WTF Platform, including, without limitation, the Google Maps/Google Earth Additional Terms of Service located at https://maps.google.com/help/terms_maps.html and the Google Privacy Policy located at https://www.google.com/intl/ALL/policies/privacy/index.html. All such Additional Terms are hereby incorporated into this Agreement by reference.

13. PRIVACY POLICY.

The terms and conditions of the Privacy Policy are incorporated into this Agreement by reference.

14. COPYRIGHT POLICY.

WTF respects the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on the WTF Platform or a website through which our Services may be accessed in a way that constitutes copyright infringement, please provide WTF’s Copyright Agent (as set forth below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):

1. A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that allegedly has been infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works allegedly have been infringed, then a representative list of such copyrighted works;
3. Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the allegedly infringing material, e.g., the specific web page address on the WTF Platform;
4. Information reasonably sufficient to permit us to contact the party alleging infringement, including an email address;
5. A statement that the party alleging infringement has a good-faith belief that use of the copyrighted work in the manner complained of is not authorized by the copyright owner or its agent, or is not otherwise permitted under the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is authorized to act on behalf of the copyright owner of the work that allegedly has been infringed.

Please send this notification to our registered agent at: WTF WHERES THE FOODTRUCK LLC, Attention: Copyright Agent, 1453 Summer Glow Ave, Henderson, Nevada 89012.

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying WTF and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with WTF’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, WTF has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. WTF may also in its sole discretion limit access to the WTF Platform, the WTF Services and/or terminate the Accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

15. TERMINATION AND VIOLATIONS OF THE AGREEMENT.

Your rights under this Agreement will terminate automatically without notice if you fail to comply with any term of this Agreement. Further, WTF reserves the right, in its sole and absolute discretion, to modify, suspend, or discontinue at any time, with or without notice, the WTF Platform and/or Services offered on or through the WTF Platform (or any part thereof), including but not limited to the WTF Platform’s features, look and feel, and functional elements and related WTF Services. We will have no liability whatsoever on account of any change to the WTF Platform or any suspension or termination of your access to or use of the WTF Platform. You may terminate this Agreement at any time by closing your Account, uninstalling all Mobile Application(s) (if applicable) and ceasing use of the WTF Platform and Services provided herein.

Upon termination of this Agreement for any reason or no reason: (i) your access rights will terminate and you must immediately cease all use of the WTF Platform and Services; and (ii) any provision of this Agreement that contemplates or governs performance or observance subsequent to termination of this Agreement will survive the termination of this Agreement, including without limitation the following sections: (i) “Your Content and Conduct;” (ii) “Disclaimer;” (iii) “Limitation of Liability;” (iv) “Important Note to New Jersey Consumers;” (v) “Termination and Violations of this Agreement;” (vi) “Dispute Resolution;” and (vii) “Waiver and Severability.”

WTF reserves the right to seek all remedies available at law and in equity for violations of the Agreement, including, without limitation, the right to block access to the WTF Platform and/or Services from a particular account, device and/or IP address.

You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement in whole or in part at any time to any entity without your notice or consent. Any purported assignment by you in violation of this section shall be null and void.

16. CHANGES TO THE AGREEMENT.

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 “Legal” link available on our Platform. If we make a material change to the Agreement, we may notify you. You agree that you will review this Agreement periodically. By continuing to access and/or use the WTF Platform and/or Services after we post updated terms, you agree to be bound by the updated terms, and if you do not agree to the updated terms, you will stop using the WTF Platform and/or accessing the Services. Any disputes under this Agreement will be governed by the version of Agreement in effect at the time of the first event which gave rise to the dispute.

17. GOVERNING LAW.

You acknowledge and agree that your access to and/or use of the WTF Platform, the WTF Services, the Materials, and other content on the WTF Platform is subject to all applicable international, federal, state, and local laws and regulations. The terms, conditions, and policies contained in this Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to its conflict of laws principles.

18. DISPUTE RESOLUTION.

18.1 Arbitration and Class Action Waiver.

You agree that all claims, disputes, or disagreements that may arise out of the interpretation or performance of this Agreement or payments by or to WTF, or that in any way relate to your use of the WTF Platform, the Materials, the WTF Services, and/or other content on the WTF Platform or any other dispute with WTF, shall be submitted exclusively to binding arbitration, except that each party retains the right to bring an individual action in small claims court for disputes and actions within the scope of such court’s jurisdiction and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Arbitration means that an arbitrator and not a judge or jury will decide the claim. Rights to prehearing exchange of information and appeals may also be limited in arbitration. You acknowledge and agree that you and WTF are each waiving the right to a trial by jury. You further acknowledge and agree that you waive your right to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and WTF otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this class action waiver is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms of Use. You further acknowledge that any claim arising under this Agreement must be brought within one year of its accrual or it will be waived. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate, as well as all threshold arbitrability issues, including whether this Dispute Resolution provision is unconscionable and any defense to arbitration.

18.2 Arbitration.

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:

The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.

i) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.

ii) The seat, or legal place, of arbitration will be Las Vegas, Nevada, USA or the JAMS location closest to the complaining party’s place of business.

iii) The language to be used in the arbitral proceedings will be English.

iv) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.

v) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.

vi) This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

vii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.

viii) Each party shall pay its own proportionate share of Arbitrator fees and expenses plus any expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

ix) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Nevada.

18.3 Changes.

WTF reserves the right to change this “Dispute Resolution” section, but any such changes will not apply to disputes arising before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if WTF changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you agree that your continued use of the WTF Platform after such change will be deemed acceptance of those changes. If you do not agree to such change, you may reject any such change by providing WTF written notice of such rejection by mail or hand delivery to: WTF, Attn: Dispute Resolutions, 1453 Summer Glow Ave, Henderson, Nevada 89012, or by email from the email address associated with your account to: disputeresolution@WheresTheFoodtruck.com, within 30 days of the date such change became effective, as indicated in the “Effective” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and WTF in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement, as applicable).

19. WAIVER AND SEVERABILITY.

Any waiver by WTF of any term of this Agreement must be in writing. If any portion of this Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision that matches the intent of the original provision as closely as possible except that in the event of unenforceability of the class action waiver, the entire arbitration agreement shall be unenforceable. The remainder of this Agreement shall continue to be enforceable and valid according to the terms contained herein.

20. ENTIRE AGREEMENT.

This Agreement, together with any amendments and any additional agreements you may enter into with WTF in connection with the WTF Platform and the WTF Services hereunder, shall constitute the entire agreement between you and WTF concerning the WTF Platform and the WTF Services hereunder.

21. CONTACT.

If you have any questions regarding this Agreement, please visit our “Contact Us” page for answers and our contact information.

Last modified: 7/17/2020

Where’s The Foodtruck (“WTF”) U.S. Vendor Terms and Conditions

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM OR ADDENDUM THAT REFERENCES THESE TERMS OR (3) REGISTRATION ON AND/OR USE OF THE WTF PLATFORM, VENDOR AGREES TO THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “VENDOR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM OR SERVICES.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.

1. GENERAL.

WTF WHERES THE FOODTRUCK LLC. and its subsidiaries and affiliates (“WTF,” “Company,” “we,” “our,” or “us”) own and operate certain websites, including related subdomains; our mobile, tablet and other smart device applications; application program interfaces; other online services; other tools, technology and programs (collectively, the “WTF Platform”) and all associated services (collectively, the “WTF Services”); in each case, that reference these Terms of Use.

These WTF Vendor Terms and Conditions (“Terms“) are hereby accepted and agreed to by the company identified within the WTF sign-up process (“Vendor” or “You“), and constitute a legally binding agreement by and between Vendor and WTF. Vendor is responsible for updating contact information and regularly reviewing the Terms and any applicable Product or Services Addendum for updates and information from WTF. Continued use of the Platform or Services after any such modifications or updates shall constitute Vendor’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Product or Services Addendum.

2. SERVICES.

2.1 Items and Services.

WTF and its affiliates make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for F&B Items (as defined below) and non-F&B Items (as defined below) (collectively, “Items”) from Vendor to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (“WTF Services”).

“F&B Items” are defined as foods and beverages that are typically sold by restaurants and/or mobile food vendors in a form intended for immediate consumption on-premises, for take-out, and/or delivery. “Non-F&B Items” are defined as all other products which do not meet the F&B Items criteria.

2.2 Alcoholic Items.

Some jurisdictions permit the sale and delivery of alcoholic beverages. In such jurisdictions, if you fulfil an order that includes any alcoholic beverage, you represent and warrant that you are permitted to sell such product(s). Upon release or delivery of alcoholic items, as applicable, you shall require proof to be presented in the form of a government-issued identification card, evidencing the customer age, consistent with applicable legal requirements. You also agree to withhold release and delivery of the alcoholic beverages if the customer or the recipient of the product(s) appears intoxicated when receiving such product(s). You agree that you, the Vendor, are solely responsible for enforcing local applicable law and conformance with this section.

2.3 Vendor Technology.

In connection with the Services, WTF and its affiliates may also make available to Vendor a website, mobile application or other technology interface for Vendor to access and use the Services (collectively, the “WTF Tools”) through which insights and analytics regarding Vendor’s performance and history using the Services are provided.

2.4 WTF App.

WTF and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from Vendor and request delivery services for said Items from Delivery Service Providers (as defined below) (“DSP”), who retrieve such Items from Vendor and deliver such Items to such Customers. DSP are independent providers, and as such, they reserve the right to refuse to accept any Item in their sole discretion.

2.5 Product Services.

VIRTUAL STOREFRONT: WTF may provide Vendor with a separate and additional electronic storefront within the WTF Platform (“Virtual Storefront”) through which Vendor may sell non-F&B Items to Customers.

3. WTF WHERES THE FOODTRUCK OBLIGATIONS.

3.1 Services.

Subject to the terms and conditions of this Agreement, WTF and its affiliates will make available the applicable Services to Vendor, solely for use by Vendor at locations that are owned and operated by Vendor (each, a “Vendor”). Vendor shall provide WTF current and accurate Vendor information throughout the use of the WTF Platform and within the Term of this Agreement. In connection with the provision of WTF Services to Vendor, WTF and its affiliates, on behalf of Vendor, may respond to complaints by Vendor’s customers (“Customers”) about Items sold by Vendor via the WTF Platform. In addition, WTF may make available certain tools to Vendor, and Vendor may access and use those tools solely in connection with Vendor’s use of the Services. For the avoidance of doubt, as between Vendor and WTF, WTF will retain sole and absolute control over the WTF Platform (and all elements of the user experience and user interface relating to the WTF Platform), including with respect to: (i) the personalization of the WTF Platform for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the services provided by DSP; and (v) adding, removing or otherwise modifying any feature or functionality made available through the WTF Platform to optimize reliability or efficiency on the WTF Platform.

3.2 Technology, Not Food or Delivery, Services.

Vendor agrees neither WTF nor its affiliates provide any Item preparation, assembly, storage or delivery services. Rather, WTF provides technology services that both (i) enable Vendor to connect with Customers who may purchase Items from Vendor and (ii) enable DSP to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. DSP perform their delivery services for (and are paid by) the Customers, and not Vendor. “Delivery Service” is defined as a third-party delivery service that intends to seek, receive and fulfill on-demand requests for delivery services using WTF’s proprietary technology under license from WTF or its affiliates.

4. VENDOR OBLIGATIONS.

4.1 Availability of Items.

Vendor will make Items available for purchase through the WTF Platform (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Vendor will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items (“Alcohol Safety Standards”). Vendor will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Vendor is responsible for ensuring that all Items meet the applicable Criteria. If Vendor fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), WTF may, in its sole discretion, remove such Item from the WTF Platform. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the WTF Platform. Vendor represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the WTF Platform is, and at all times will remain, accurate. In addition, Vendor will ensure that the contents of its menu includes each Items Criteria (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) are accurate and comply with all applicable laws and regulations.

4.2 Item Responsibility.

Vendor acknowledges and agrees that neither WTF nor the DSP takes title to any Item at any time. Notwithstanding, Vendor shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Vendor’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Vendor’s internal standards. WTF may, in its sole discretion, deduct reimbursement costs from the payment WTF remits to Vendor in accordance with this Section 4. To the extent required by applicable law, and only for the purpose of the expedited provision of Items, Items are sold to Customers under Vendor’s retail and food delivery license privileges.

4.3 Use Restrictions.

In connection with the access to and use of the WTF Services and WTF Tools, Vendor will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the tools or Services (except as otherwise authorized by WTF); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency. Vendor will not (and will not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the WTF Platform to directly or indirectly compete with WTF or its affiliates or the WTF Services.

4.4 Item Restrictions.

The following restricted Items may not be featured or sold via the WTF Platform: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Vendor does not have permission to offer. WTF may remove from—or otherwise limit your ability to post to—a Vendor’s Platform menu any Items WTF deems prohibited or inappropriate. For clarity, alcohol is only permitted on the WTF Platform if Vendor has agreed to WTF’s Alcoholic Items policy (Section 2.2).

WTF may restrict the sale of Items via the WTF Platform based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for sale or delivery).

4.5 Gratuities.

For the sale of Items via the WTF Platform, Vendor agrees to allow Customers to provide gratuities through the WTF Platform. WTF shall remit to Vendor the full value of any gratuities provided by Customers. It is the sole responsibility of the Vendor to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.

5. FEES AND TAXES.

5.1 Calculation of Fees.

For each Item sold by Vendor via the WTF Platform, Vendor will pay WTF as follows: the Retail Price (as defined below) of all Items that Vendor sells via the WTF Platform (excluding any Sales Tax collected on Vendor’s behalf) multiplied by the applicable fee percentage (“Fee”). WTF will remit to Vendor the total Retail Price collected for all Items Vendor sells via the WTF Platform (including any Sales Taxes collected on its behalf) less: (a) the retained Fee; and (b) any refunds given to Customers (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Vendor will be remitted within fourteen (14) business days of the sale of the Item. Subject to the foregoing, all WTF Platform purchases are processed through Square and are deposited in each respective Square Merchant account according to Square’s policies and processing schedule, which is selected by each individual merchant. Current schedules can be found on Square’s website.

Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:

i) Items: WTF will charge Vendor a fee percentage of 0% for each Item sold via the WTF App;

ii) Catering Lead Generation & Management: WTF will charge Vendor a fee percentage of 15% for each Catering Contract completed by WTF;

iii) Scheduling Lead Generation & Management: WTF will charge Vendor a fee percentage of 15% for each Scheduled Location sales event completed by WTF;

iv) End User Platform usage: WTF will not charge the End Users (“Customers”) for access to the WTF Platform.

v) WTF offers paid memberships to Vendors on a monthly and annually renewing basis. Vendors are not required to purchase a membership. Subscription purchases are a digital service and are non-refundable once processed.

vi) End User Mobile Ordering convenience fee: in association with the purchase of Items through the WTF Platform Mobile Ordering feature, WTF will charge the End Users (“Customers”) a fee of $0.99 per transaction.

For the sake of clarity, the End User Mobile Ordering fee is added onto the cost of each order and is transferred through the Vendor’s Square account to WTF. For example, a $10.00 order will include the $0.99 convenience fee for a total of $10.99, paid through the WTF Platform by the customer. The Vendor may be responsible for the processing costs on the full payment amount. (Processing fees imposed by Square are neither the responsibility nor under control or influence of WTF.) The $0.99 convenience fee is then transferred to WTF and the remaining balance is transferred to the Vendor’s Square account. All convenience fees transferred to WTF are final and non-refundable.

If required by applicable law or regulation, WTF may adjust the Fee. Such adjustment may apply only to certain Items such as Alcohol Items. All Fees under this Agreement will be paid in U.S. Dollars. WTF or its affiliates will deduct the Fee from the payment WTF collects on Vendor’s behalf, as detailed in Section 5.3 below. WTF reserves the right to suspend Vendor’s ability to make Items available for purchase by Customers through the WTF Platform if Vendor’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Service is unable to complete the delivery of such Item. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.

5.2 Activation Fee.

Unless otherwise agreed to by the Parties, in consideration of WTF’s work to activate Vendor on the WTF Platform, Vendor will pay to WTF a Fee of $0 (“Activation Fee“). Vendor agrees that WTF may deduct the Activation Fee from Vendor’s Item Revenue.

5.3 Retail Prices; Taxes.

WTF Services connect you with Customers who wish to purchase your Items. You are the “vendor”, or “seller” of all Items to be made available for sale via the WTF Platform. As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”), and you are ultimately responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes.

Vendor hereby authorizes WTF to collect applicable Sales Taxes on Vendor’s behalf based on information provided by Vendor through the WTF Tools. The WTF Tools’ functionality may be based on interpretations of federal, state, and local laws and regulations and information provided by taxing authorities. Vendor’s use of the WTF Tools, including any communications with WTF, in no way constitutes the provision of legal or tax advice.

Vendor shall promptly notify WTF if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. If Sales Taxes charged by Vendor are not in accordance with (or in violation of) any law or regulation, WTF expressly reserves the right to, upon prior notice to Vendor, remove affected Items from Vendor’s menu on the WTF Platform and/or deactivate Vendor from the Platform.

Certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require WTF to collect and remit Sales Taxes directly to the taxing authority. In jurisdictions with Marketplace Facilitator laws in effect that are applicable to WTF due to this Agreement (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), WTF may determine, as of a date specified by WTF (“Switchover Date(s)”), the amount of applicable Sales Tax which WTF will collect and remit to the taxing authority based on Item descriptions and Additional Information provided by Vendor. For the avoidance of doubt, for each Marketplace Facilitator Jurisdiction: (i) WTF will continue to collect Sales Taxes on behalf of, and remit such amounts to, Vendor until the applicable Switchover Date and (ii) beginning on the applicable Switchover Date, any covered Sales Taxes will be collected by WTF and remitted to the applicable tax authority on WTF’s own account, and not on behalf of Vendor.

5.4 Pricing

Notwithstanding anything to the contrary in this Section 5, Vendor may not make any Item available to Customers through the WTF Platform at a price that is higher than the price that Vendor charges on-site for similar Items. Vendor agrees not to make an Item available under this Agreement at a price higher than the amount Vendor is charging for similar Items through any comparable platform for food sales or delivery services.

5.5 Appointment of Limited Payment Collection Agent.

Vendor is solely responsible for providing WTF with, and maintaining, accurate bank account information. Vendor hereby appoints WTF and its affiliates, as the case may be, as Vendor’s limited payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Items sold by Vendor via the WTF Platform plus any applicable Sales Tax collected on Vendor’s behalf, via the payment processing functionality facilitated by the WTF Tools, and (ii) remitting the Retail Price plus Sales Tax collected on Vendor’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Vendor (“Item Revenue”). Further, Vendor agrees that payment collected on its behalf by WTF or its affiliates will be considered the same as payment made directly to Vendor. Vendor agrees that if Vendor does not receive payment from WTF or its affiliates, Vendor’s only recourse will be against WTF and its affiliates. WTF and its affiliates may, from time to time, request information from Vendor to confirm Vendor’s identity as may be necessary under any applicable compliance obligations before remitting any amounts to Vendor and may refuse to process amounts owed to Vendor if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Vendor. Vendor agrees that WTF and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the applicable Addendum, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, WTF may adjust the remittance of Item Revenue collected on Vendor’s behalf for reasons including failure to fulfill an Item as ordered or making a correction on an Item. Vendor may identify any disagreements in connection with such adjustments through the WTF Tools, WTF Platform, or via email. WTF and its affiliates reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Item Revenue collected on Vendor’s behalf, by debiting the payment method or Vendor’s bank account on record, or otherwise seeking reimbursement from Vendor by any lawful collection methods available. Vendor authorizes WTF and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Items that Customers did not place) or Customer complaints, WTF and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Vendor gives WTF and its affiliates express consent to adjust payments collected on Vendor’s behalf as set forth in this Section.

5.6 Additional Information.

WTF may, from time to time, require Vendor to provide certain additional information (“Additional Information”) pertaining to particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: Universal Product Codes (“UPCs”), Global Trade Item Numbers (“GTINs”), Stock Keeping Units (“SKUs”), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, inclusion of utensils, method of preparation (e.g., sliced), identity of preparer, whether the item is “ready-to-eat”, or intended use. Vendor is solely responsible for providing requested Additional Information to WTF in a timely manner. If Vendor fails to timely provide Additional Information in response to notification and request by WTF, WTF expressly reserves the right to temporarily remove affected Items from Vendor’s menu on the WTF Platform until such Additional Information is received.

5.7 Account Deletion and Subscription Cancellation.

If a Vendor wants to delete his account and/or data from WTF, they can submit a request to contact@wheresthefoodtruck.com. If a Vendor has a paid membership and wants to upgrade, downgrade, or cancel the membership, he can do so through his user account in our Member Portal on our website at WheresTheFoodtruck.com. He can also submit a direct request via email, phone, text, direct message on social media to one of our accounts, or through our Contact Us form found on our website and in our mobile apps. For upgrades/downgrades, credit will be applied to the Vendor account. For cancellations, no refunds will be provided.

6. REPORTING.

WTF may provide Vendor aggregate information regarding the number of Items sold by Vendor to Customers via the WTF Platform. WTF will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, the reason for the refund and any other information WTF is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Vendor agrees that WTF may share Vendor’s transactional data regarding ordered meals, including sales data, with Vendor’s parent company or Franchisor.

7. INTELLECTUAL PROPERTY; CONTENT; MARKETING AND PROMOTIONAL ACTIVITIES.

7.1 Marks.

Subject to this Agreement, each party hereby grants to the other party (and, in the case of WTF, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Vendor’s Marks by WTF or its affiliates in connection with making Items available through the WTF Platform in the ordinary course of business will not require any such prior, express, written consent. Vendor further agrees that any use or display of WTF’s Marks will conform to the current version of WTF’s Brand Guidelines. Texts and graphics which meet WTF’s current Brand Guidelines can be found, copied, and downloaded at: https://www.wheresthefoodtruck.com/brand-assets for Vendor usage. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Vendor represents and warrants that Vendor’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Vendor agrees that WTF or its affiliates may remove Vendor’s Marks from the WTF Platform if WTF or its affiliates receive notice or otherwise reasonably believe that such Vendor’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.2 Content.

WTF may provide you with interactive opportunities (i) on the Platform, including, without limitation, features such as deals & daily specials, favorite items, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through push notifications, text (“SMS”) or multimedia (“MMS”) messages (collectively, “Interactive Areas“). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to WTF through the WTF Platform or otherwise in connection with your use of the WTF Services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login or integration (“Your Content”). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a WTF Vendor, textual, visual, or audio content and information, whether transmitted via the Platform, SMS or MMS message, or otherwise.

You grant WTF an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use Your Content in connection with WTF’s or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”). The Uses include, without limitation, use of your username and/or other user profile information such as your ratings history and how long you have been a WTF Vendor, to attribute Your Content to you on the WTF Platform, including in Interactive Areas and other public areas on our WTF Platform, or otherwise in connection with the WTF Services. All Uses will be made without notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Further, if you provide any suggestions, input, or other feedback relating to the WTF Platform or the WTF Services we provide (collectively, the “Feedback”), WTF shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant WTF a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.

You further understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. WTF and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for the action of any and all third parties with respect to Your Content, or for any damages you allege to incur as a result of or relating to any third-party content.

7.3 No Development.

EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between WTF and Vendor prior to the commencement of any such activities.

7.4 Marketing.

WTF and its affiliates may showcase the availability of Vendor’s location, hours of operation, and Items (collectively, the “Vendor Profile”) via the WTF Platform through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). WTF (or a party designated by WTF acting on WTF’s behalf) may take video and still images for marketing and other efforts related to the WTF Platform (“WTF Photos”). Vendor agrees that WTF Photos (including all intellectual property rights therein) are and will remain the sole and exclusive property of WTF or its affiliates. Additionally, Vendor may provide videos, still image or other materials to WTF or its affiliates (“Vendor Marketing Materials”) for use in connection with the display of the Vendor Profile on the WTF Platform or the marketing and promotion of Where’s The Foodtruck and the availability of your Vendor Profile via the WTF Platform. Vendor hereby grants WTF and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Vendor Marketing Materials in connection with the Vendor Profile and other promotional activities relating to the WTF Services. Without limiting anything in the Agreement, Vendor represents and warrants that the Vendor Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Vendor Marketing Materials contain any third party materials, Vendor is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for WTF to be able to use the Vendor Marketing Materials in accordance with this Section. Vendor agrees that WTF or its affiliates may remove Vendor Marketing Materials from the WTF Platform if WTF or its affiliates receive notice or otherwise reasonably believe that such Vendor Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.5 Deals.

“Deal(s)” means short-term offers that are available through the WTF Platform to stimulate Customer demand. When a Deal is successfully applied to an order, Vendor authorizes WTF to charge Customers for the post-Deal value of an Item (not including taxes and applicable fees). Subject to WTF Platform functionality, WTF may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Deal.

i) Vendor Deal(s). Subject to any other guidelines or eligibility criteria for Deals that WTF may make available from time to time, WTF hereby authorizes Vendor to create Deals that are designed and fulfilled by Vendor (“Vendor Deal(s)”). Unless otherwise specified by WTF, Vendor will be solely responsible for defining each Vendor Deal (within the scope of functionality provided by WTF) either through the use of the Deals Tab (as defined below) or through the Deals Schedule (as defined below).

1. WTF authorizes Vendor to use WTF’s proprietary, automated, self-service tool located within the WTF Platform’s Deals Tab to create Deals, subject to the WTF Platform’s functionality and technical capability. If provided access to the tool, Vendor agrees to only use and access such tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
2. Vendor may create a Vendor Deal by completing and providing WTF with a written deals schedule (“Deals Schedule”). To request a Deals Schedule form, Vendor should contact its customer support representative.

ii) Co-Funded Deals(s). From time to time, WTF may agree to fund a portion of Vendor’s Deal (each, a “Co-Funded Deal”). For each such Co-Funded Deal, the parties shall agree to an applicable written Deals Schedule setting forth: (1) a description of the Co-Funded Deal; (2) the obligations of each party in relation to such Co-Funded Deal, including funding obligations; and (3) any other details regarding the Co-Funded Deal. For the sake of clarity, such Co-Funded Deal(s) shall appear to the Customer as both a Vendor Deal and a WTF Deal, and WTF shall issue an adjustment to Vendor’s payout (which shall also be reflected in any payout details report) to account for the amount of the Deal that WTF has agreed to fund, such that the Vendor shall receive the same amount in their Item Revenue for such order as if a WTF-funded portion of the Deal was not applied to such order.

iii) Parties’ Obligations. The parties’ obligations for each Deal will include the following, but may be expanded upon in an applicable Deals Schedule.

1. Vendor’s Obligations. Vendor will: (A) honor and fulfill the terms of Deals offered by Vendor (solely or jointly with WTF) to Customers who have successfully completed their order through the WTF Platform; (B) be responsible for the fees associated with the Deal up to the amount Vendor has agreed to fund for such Deal; and (C) upon reasonable request, supply WTF with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which WTF may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Vendor acknowledges and agrees that Vendor will not be able to terminate the Agreement while a Deal is live.
2. WTF’s Obligations. WTF will: (A) honor and fulfill the terms of Deals offered by WTF (solely or jointly with Vendor) to Customers who have successfully completed their order through the WTF Platform; (B) be responsible for the fees associated with the Deal up to the amount WTF has agreed to fund such Deal; (C) upon reasonable request, supply Vendor with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Vendor shall use to market such Deal, provided that a Deals Schedule authorizes Vendor to market such Deal outside of the WTF Platform; and (D) use good faith efforts to provide Vendor with reasonable information regarding Deals, which may include, without limitation, the amount Vendor spent on Deals and the number of Items sold in connection with Deals.

iv) Fee on Deals Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Vendor Deal or Co-Funded Deal to an order through the WTF Platform, the Fee shall be calculated based on the total Retail Value of the order minus the Vendor-funded portion of such Deal applied to that order. For the sake of illustrative purposes, if Vendor and WTF each fund $1 of a $2 off Deal (so the Co-Funded Deal is funded 50% by each party) on a $10 pre-Deal order total, the Fee shall be calculated on the post-Deal amount of $9.

v) Outside of WTF Platform Marketing. Unless otherwise specified in an applicable Deals Schedule, Vendor may not market or otherwise advertise a Deal outside the WTF Platform. If a Deals Schedule authorizes Vendor to market a Deal out of the WTF Platform, all such marketing materials will be subject to WTF’s prior review and written approval, which shall not be unreasonably withheld.

7.6 Publicity.

Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

8. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK.

8.1 Definition.

“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Vendor’s Items to Customers through the WTF Platform and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Vendor hereby authorizes WTF and its Affiliates to disclose the terms of this Agreement to Vendor’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.

8.2 Privacy.

Vendor agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. Vendor will maintain the accuracy and integrity of any Personal Data provided by WTF and in Vendor’s possession, custody or control. Vendor agrees to retain Personal Data provided to Vendor by WTF solely by using the software and tools provided by WTF. “Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.

8.3 Passwords.

Vendor is responsible for maintaining the integrity of information related to Vendor’s access and use of the WTF Tools and related WTF Services, including any password, login or key information. Vendor represents and warrants that Vendor will not share such information with any third party.

8.4 Data Re-Identification Restriction.

Without limiting any other provision of this Agreement, including any provision in this Section 8, Vendor will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.

9. RATINGS.

Vendor acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the WTF Platform to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Vendor and the relevant Item(s) on the WTF Platform (“Customer Feedback”). WTF and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of WTF and its affiliates without attribution to or approval of Vendor. Vendor acknowledges that WTF and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that WTF and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or WTF’s or its affiliates’ content policies.

10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

10.1 Representations and Warranties.

Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Vendor, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Vendor further represents and warrants that to the extent Vendor has franchisees who participate in any activities under this Agreement, Vendor will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.

10.2 DISCLAIMER.

EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

11. INDEMNITY.

11.1 Indemnified Claims.

Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the WTF Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Vendor’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Sales Tax applicable to sales of Items in non-Marketplace Facilitator Jurisdictions; (C) Vendor’s failure to provide accurate and complete descriptions or Additional Information for Items in Marketplace Facilitator Jurisdictions; (D) Sales Tax applicable to all sales of Items (regardless of whether such Items are sold through the WTF Platform); or (E) any claim related to Vendor’s failure to perform obligations contained in Section 2 of the Terms of Use for Alcoholic Items, if applicable, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of WTF or its employees, agents or DSP..

11.2 Procedure.

We will provide you prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

12. LIMITS OF LIABILITY.

EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF VENDOR OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.

13. INSURANCE.

During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.

14. SUPPLEMENTAL TERMS.

Vendor will comply with the applicable then-current Community Guidelines, currently available at https://www.wheresthefoodtruck.com/community-guidelines (“Community Guidelines”). In addition, supplemental terms may apply to Vendor’s use of the WTF Services and the WTF Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (collectively, with the Community Guidelines, “Supplemental Terms”). Supplemental Terms are in addition to, and will be deemed a part of, the Agreement. Supplemental Terms will prevail over the Agreement in the event of a conflict. WTF will use good faith efforts to provide Vendor with written notice of any material updates to the Supplemental Terms, and, if Vendor does not agree to comply with the terms of any such update, Vendor may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Services and Tools. By continuing to use the WTF Services or the WTF Tools, Vendor will be deemed to accept the Supplemental Terms. Notwithstanding anything to the contrary, the terms and conditions of WTF’s then-current Privacy Policy, currently available at: https://www.wheresthefoodtruck.com/legal, will apply to WTF’s collection, use and processing of Personal Data.

15. TERM AND TERMINATION.

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Deal period, such termination will not take effect until such Deal period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, WTF may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Vendor that, in WTF’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.

16. NOTICE.

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to WTF should be provided to WTF WHERES THE FOODTRUCK, LLC, Attn: Legal- Vendor Contracts, 1453 Summer Glow Avenue, Henderson, NV 89012. Notices to Vendor should be provided to the address provided by Vendor. The parties agree that all legal documents (including complaints and subpoenas) directed to WTF will be served on WTF’s registered agent for service of process. WTF’s registered agent is Morro Bay Consulting LLC, Attn: Natalie Laechelt, 3097 E. Warm Springs Rd #300, Las Vegas, NV 89120.

17. DISPUTE RESOLUTION AND ARBITRATION.

17.1 Arbitration.

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:

The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.

i) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.

ii) The seat, or legal place, of arbitration will be Las Vegas, Nevada, USA or the JAMS location closest to the complaining party’s place of business.

iii) The language to be used in the arbitral proceedings will be English.

iv) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.

v) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.

vi) This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

vii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.

viii) Each party shall pay its own proportionate share of Arbitrator fees and expenses plus any expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

ix) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Nevada.

17.2 Waiver of Jury Trial.

Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party (i) certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement.

18. DIVERSITY AND INCLUSION.

Vendor will not, in its use of the WTF Services or the WTF Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between WTF and Vendor. Vendor acknowledges and agrees that upon WTF’s receipt of evidence of Vendor’s discrimination under any of these categories, WTF will have the right to immediately terminate this Agreement following notice to Vendor.

19. ADDITIONAL TERMS.

The territory of this Agreement is the United States (“Territory”), and all payments issued under this Agreement must be in U.S. dollars. Vendor agrees to receive calls, SMS messages and other communications, including those made available by autodialer, sent by or on behalf of WTF or its affiliates. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Vendor, Vendor explicitly consents that any such transferee will have access to and control of all Vendor accounts related to such transfer, including its accounts with WTF, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Vendor’s Location(s), the parties will need to execute a Change of Ownership form and Vendor acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the WTF Platform until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.

Last modified: 7/17/2020

Where’s The Foodtruck (“WTF”) U.S. Affiliate Terms and Conditions

BY ACCEPTING THIS AGREEMENT, BY APPLYING TO OUR AFFILIATE PROGRAM, AFFILIATE AGREES TO THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “AFFILIATE” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM OR SERVICES.

We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of an existing program, including our partner programs. If we update or replace the terms, we will let you know via email to the email address associated with your affiliate account. If you don’t agree to the update or replacement, you can choose to terminate your account as described below.

1. GENERAL.

WTF WHERES THE FOODTRUCK LLC. and its subsidiaries and affiliates (“WTF,” “Company,” “we,” “our,” or “us”) own and operate certain websites, including related subdomains; our mobile, tablet and other smart device applications; application program interfaces; other online services; other tools, technology and programs (collectively, the “WTF Platform”) and all associated services (collectively, the “WTF Services”); in each case, that reference these Terms of Use.

2. DEFINITIONS.

“Affiliate Program” means our affiliate program as described in this Agreement.
“Affiliate Lead” means a vendor prospect, in this case a vendor operating in the mobile food vending industry, who submits a vendor registration form on our website and was referred to our WTF via your Affiliate Link, as we have made available to you via the Affiliate Dashboard.
“Affiliate Link” means the unique tracking link, QR code, or registered domain that you utilize to promote us.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
“Affiliate Dashboard” means the dashboard and its included tools that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.
“Agreement” means this Affiliate Program Agreement and all materials referred or linked to in here.
“Commission” means an amount described in the Affiliate Dashboard for each Vendor Transaction or Referral
“Vendor” means the authorized actual user of our platform who has purchased an upgraded membership or signed up for a vendor account on our platform.
“Vendor Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Vendor Transactions’ section of this Agreement. Vendor Transactions may include vendor purchases or vendor signups.
“Vendor Data” means all information that Vendor submits or collects via our platform and all materials that Vendor provides or posts, uploads, inputs or submits for public display through our platform.
“WTF Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
“WTF Products” means the Membership Service.
“Membership Service” means our mobile-app-based marketing and mobile ordering software that is subscribed to, and developed, operated, and maintained by us, accessible to registered vendors by downloading the app at https://wheresthefoodtruck.com/wtfvendor or another designated URL, and add-on products to our marketing software. For the purposes of this Agreement, the Membership Service does not include any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
“We”, “us”, “our”, “WTF” and “Where’s The Foodtruck” means WTF WHERES THE FOODTRUCK LLC.
“You” and “Affiliate” means the party, other than WTF, entering into this Agreement and participating in the Affiliate Program.

3. NON-EXCLUSIVITY.

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

4. AFFILIATE ACCEPTANCE.

Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program or not.  Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements or certification(s) before we accept your application. If we attempt to communicate with you via the email provided in your application, but you do not reply to our communications within seven (7) days from our communication, your application is considered to be rejected. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected.

If you are accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below. Failure to complete any enrollment criteria within thirty (30) days of your acceptance will result in the immediate termination of this Agreement and you will no longer be able to participate in the Affiliate Program.

Your acceptance and participation in the Affiliate Program does not mean that you will be accepted into any of our other programs. In order to participate in these programs, you will need to apply in accordance with the relevant application procedure.

You will comply with the terms and conditions of this Agreement at all times.

5. VENDOR TRANSACTIONS.

5.1 Affiliate Program Limits.

Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Dashboard from the date the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you Commission as described in the Affiliate Dashboard for each new Vendor who completes an applicable Vendor Transaction after clicking on an Affiliate Link made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement.  The start of the Vendor’s subscription is determined by the date of the first purchase or sign up (as applicable) of the Membership Service by the Vendor and you will receive a Commission payment for that Vendor Transaction only, regardless of any additional purchases made by that Vendor during their Membership Service. For example, if the initial Vendor Transaction is for one Premier Membership, and there is a subsequent purchase by that same vendor for an additional Premier Membership, Affiliate will receive Commission for the initial user purchase only. If, for example, the Vendor upgrades or downgrades from one WTF Product to another, the Affiliate’s commission will be adjusted accordingly to match the current WTF Product value.

5.2 Eligibility.

To be eligible for Commission (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, (ii) a Vendor Transaction must have occurred, (iii)  a Vendor must remain a paying customer during the payout period. You are not eligible to receive Commission or any other compensation from us based on transactions for Other Products or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Vendor objects to or prohibits such compensation or excludes such compensation from its payments to us or WTF Affiliates; (iii) the Vendor has paid or will pay such commissions, referral fees, or other compensation directly to you, (iv) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, misuse of the Affiliate Dashboard or by any other means that we deem to breach the spirit of the Affiliate Program, or (v) the Vendor participates in any of our partner programs and is eligible to receive commission in relation to the Vendor Transaction under any of these programs. In competitive situations with other affiliates, we may elect to provide the Commission to the affiliate that we deem to be the most eligible for Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.

5.3 Acceptance and Validity.

You will only be eligible for a Commission payment for any Vendor Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by WTF. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our reasonable discretion. If an Affiliate Lead does not purchase the Membership Service within one (1) year of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired.  An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated.

5.4 Engagement with Prospects.

Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between WTF and an Affiliate Lead will be at WTF’s discretion.

5.5 Commission and Payment.

In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (generally completed by participating in our Affiliate Program); (ii) completed all steps necessary to create your account in the Affiliate Dashboard in accordance with our directions, (iii) have a valid and up-to-date payment method in the  Affiliate Dashboard with such account (iv) completed any and all required tax documentation in order for the Affiliate Dashboard to process any payments that may be owed to you.

5.6 Requirements for Payment; Forfeiture.

Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 5.5 remain outstanding for six (6) months immediately following the close of a Vendor Transaction, then your right to receive Commission arising from any and all Vendor Transactions with the associated Vendor will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in section 5.5, then you will be eligible to receive Commission on Vendor Transactions, as long as these Vendor Transactions do not involve the same Vendor associated with a Forfeited Transaction.

5.7 Commission Payment.

We or the Affiliate Dashboard will determine the currency in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one Commission payment or other similar referral fee on any given Vendor Transaction (unless we choose to in our discretion).

5.8 Taxes.

You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.

5.9 Commission Amounts.

We reserve the right to alter or change the Commission amount as per the Affiliate Dashboard.

6. TRAINING AND SUPPORT.

We may make available to you, without charge, various webinars and other resources made available as part of our Affiliate Program. If we make such resources available to you, you will encourage your sales representatives and/or other relevant personnel to participate in training and/or other certifications as we recommend and may make available to you from time-to-time. We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.

7. TRADEMARKS AND CREATIVE CONTENT.

You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks, logos, and other creative content (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.

During the term of this Agreement, in the event that we make our trademark or other creative content available to you within the Affiliate Dashboard, you may use this content as long as you follow the usage requirements in this section.  You must: (i) only use the images of our trademark and creative content that we make available to you, without altering them in any way, except where expressly stated; (ii) only use our trademarks and creative content in connection with the Affiliate Program and this Agreement; (iii) comply with our style guide, which can be found at https://wheresthefoodtruck.com/brand-assets ; and (iv) immediately comply if we request that you discontinue use.  You must not: (i) use our trademark or creative content in a misleading or disparaging way; (ii) use our trademark or creative content in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark or creative content in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

8. PROPRIETARY RIGHTS.

8.1 WTF’s Proprietary Rights.

No license to any software is granted by this Agreement. The WTF Products are protected by intellectual property laws. The WTF Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the WTF Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the WTF Content, or the WTF Products in whole or in part, by any means, except as expressly authorized in writing by us. If you wish to use WTF Content, you must comply with our Content Usage Guidelines and Style Guide. The WTF logos and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.

We encourage all customers, affiliates and partners to comment on the WTF Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the WTF Products, without payment to you.

9. CONFIDENTIALITY.

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) WTF customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.  The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

10. OPT-OUT AND UNSUBSCRIBING.

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests.  For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.

11. TERM AND TERMINATION.

11.1 Term.

This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.

11.2 Termination without Cause.

Both you and we may terminate this Agreement on fifteen (15) days written notice to the other party.

11.3 Termination for Agreement Changes.

If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.

11.4 Termination for Cause.

We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

11.5 Effects of Expiration/Termination.

Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Vendor Transaction is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on Vendor Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above.  Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Dashboard that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.

Upon termination or expiration, you will immediately discontinue all use of our trademark, creative content, and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Vendor’s account agreement to be terminated.

12. AFFILIATE REPRESENTATIONS AND WARRANTIES.

You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provision WTF with Affiliate Leads for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.

You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are a WTF Affiliate on any website(s) you own where you make an Affiliate Link available); (ii) you will accurately provide in the Affiliate Domain all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads; (iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with WTF’s own advertising, including, but not limited to, our branded keywords; (iv) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (v) you will not attempt to mask the referring URL information; (vi) you will not use your own Affiliate Link to purchase WTF products for yourself; and (vii) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups.

13. INDEMNIFICATION.

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Affiliate Dashboard, or (e) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

14. DISCLAIMERS; LIMITATIONS OF LIABILITY.

14.1 Disclaimer of Warranties.

WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE WTF PRODUCTS, WTF CONTENT, THE AFFILIATE PROGRAM OR THE AFFILIATE DASHBOARD FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE DASHBOARD MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE WTF PRODUCTS AND AFFILIATE DASHBOARD ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE WTF PRODUCTS AND THE AFFILIATE DASHBOARD INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

14.2 No Indirect Damages.

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

14.3 Limitation of Liability.

IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED VENDOR TRANSACTIONS IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

14.4 Affiliate Dashboard.

WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE DASHBOARD THAT YOU USE.  WE DO NOT PROMISE TO MAKE THE AFFILIATE DASHBOARD AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.

14.5 Cookie Duration.

COOKIES USED AS PART OF THE AFFILIATE DASHBOARD HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, WTF SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.

15. DISPUTE RESOLUTION AND ARBITRATION.

15.1 Arbitration.

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:

The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.

i) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.

ii) The seat, or legal place, of arbitration will be Las Vegas, Nevada, USA or the JAMS location closest to the complaining party’s place of business.

iii) The language to be used in the arbitral proceedings will be English.

iv) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.

v) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.

vi) This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

vii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.

viii) Each party shall pay its own proportionate share of Arbitrator fees and expenses plus any expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

ix) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Nevada.

15.2 Waiver of Jury Trial.

Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party (i) certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement.

16. DIVERSITY AND INCLUSION.

Affiliate will not, in its use of the WTF Services or the WTF Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between WTF and Affiliate. Affiliate acknowledges and agrees that upon WTF’s receipt of evidence of Affiliate’s discrimination under any of these categories, WTF will have the right to immediately terminate this Agreement following notice to Affiliate.

17. ADDITIONAL TERMS.

17.1 Amendment; No Waiver.

We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Dashboard and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Dashboard have notified you. When we change this Agreement, the “Last Modified” date above will be updated to reflect the date of the most recent version in the affiliate terms & conditions section located at https://wheresthefoodtruck.com/legal. We encourage you to review this Agreement periodically.  If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

17.2 Applicable Law.

This Agreement shall be governed by the laws of the State of Nevada, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Clark County, Nevada.

17.3 Force Majeure.

Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

17.4 Actions Permitted.

Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

17.5 Relationship of the Parties.

Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.

17.6 Compliance with Applicable Laws.

You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the WTF Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury.  You will not directly or indirectly export, re-export, or transfer the WTF Products to prohibited countries or individuals or permit use of the WTF Products by prohibited countries or individuals.

17.7 Severability.

If any part of this Agreement is determined to be invalid or unenforceable by applicable law, 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 this Agreement will continue in effect.

17.8 Notices.

Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

To WTF: WTF WHERES THE FOODTRUCK, LLC, Attn: Legal- Affiliate Program, 1453 Summer Glow Avenue, Henderson, NV, U.S.A. Attention: Affiliate Program

The parties agree that all legal documents (including complaints and subpoenas) directed to WTF will be served on WTF’s registered agent for service of process. WTF’s registered agent is Morro Bay Consulting LLC, Attn: Natalie Laechelt, 3097 E. Warm Springs Rd #300, Las Vegas, NV 89120.

To you: your address as provided in our affiliate account information for you.

We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.

17.9 Entire Agreement.

This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the WTF Products or dependent on any oral or written public comments made by us regarding future functionality or features of the WTF Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

17.10 Assignment.

You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

17.11 No Third-Party Beneficiaries.

Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

17.12 No Licenses.

We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the WTF Products, our trademarks, or any other property or right of ours.

17.13 Sales by WTF.

This Agreement shall in no way limit our right to sell the WTF Products, directly or indirectly, to any current or prospective customers.

17.14 Authority.

Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

17.15 Survival.

The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’, ‘Dispute Resolution and Arbitration’, and ‘General’.

Last modified: 2/1/2022