TERMS OF SERVICE

Last updated and effective as of April 1, 2019.

Welcome to the ToGoOrder.com website (this “Site”). This Site is owned and operated by ToGoTechnologies, LLC (“ToGo”). This Terms of Service (these “Terms”) governs your use of the Site and services provided through the Site. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING THE SITE AND/OR PLACING ANY ORDER THROUGH THIS SITE.

1. General. By [clicking the “I Accept” box] and/or accessing or using this Site in any way, including without limitation, browsing this Site, placing an Order (as defined herein), using any information, and/or submitting any content or personal information to ToGo through the Site, you agree to and are bound by the terms, conditions, Privacy Policy (available at ToGoTechnologies.com and incorporated as a part of these Terms by this reference) and notices contained in these Terms, as updated from time to time. By clicking the “I Accept” box and/or using the Site, you affirm that you are more than 18 years of age and agree to abide by and comply with these Terms. Please review these Terms carefully and periodically for any updates or changes as terms may change without notice. YOUR CONTINUED USE OF THIS SITE FOLLOWING CHANGES MADE TO ANY OF THESE TERMS CONSTITUTES ACCEPTANCE OF THOSE CHANGES.

2. Terms of Sale.

   • (a) ToGo allows you to place orders for food and products offered through the Site (each, an “Order”) from member restaurants participating on the Site (each, a “Merchant”). You agree that ToGo is solely an independent website to take Orders for the Merchant. Merchant, not ToGo, is the seller of its food and products, and as such, ToGo is not responsible or liable for the food or products or any Order or attempted Order, in whole or in part, made in connection with this Site. You hereby release and agree to hold ToGo and its officers, directors, employees, agents, successors, divisions, distributors, suppliers and affiliates harmless from any and all liability for any damages, costs, expenses or losses arising out of or incurred in connection with any products and services offered by a Merchant through the Site and any Order submitted by you. THE FOOD PRODUCTS AND OTHER GOODS ARE OFFERED ON AN “AS IS,” AND “AS AVAILABLE” BASIS.

   • (b) By placing an Order, you accept all the terms and conditions in these Terms and/or applicable to the Order. You are responsible for paying all fees and applicable taxes associated with any Order you submit as such fees and taxes become due with a valid method of payment Request. The prices of the food and products set forth on the Site are subject to change. The final charges for each Order may contain additional processing, service and/or delivery fees as dictated by Merchant or any third-party payment Request processor. When you place an Order, prior to final submission, you will have an opportunity to review the final Order and accept the fees charged. Unless otherwise stated all fees are in U.S. Dollars. ALL SALES ARE FINAL. If technical problems or any other problems prevent or unreasonably delay processing or delivery (if applicable) of any Order, your sole and exclusive remedy is a refund of the price paid.

   • (c) To submit an Order, you must have a valid credit card and be an authorized user of the credit card. Prior to the placement of any Order, you must provide us with (i) a valid credit card number; (ii) your name as it appears on the card; (iii) the credit card type (i.e., VISA, AMEX); (iv) the credit card expiration date; and (v) any card ID number necessary to charge your credit card. Some situations may result in your Order being cancelled, including without limitation problems with respect to your credit card information.

   • (d) Special Offers; Promo Codes. Occasionally Merchants may make available through the Site special promotions of Merchant, which may include without limitation promotion or promo codes, or other promotional activity associated with an Order. These offers may be for a limited time only and are subject to change, alteration or termination by Merchant in its sole discretion at any time. Merchant, not ToGo, is offeror of such promotions, and as such, ToGo is not responsible or liable for the promotions, promotion codes or other special offers, in whole or in part, made in connection with this Site. ToGo reserves the right, in its sole discretion, to not permit a promotion, promotion code or other special offer in connection with your Order and may charge you the full non-discounted amount for an Order even if you have provided a promo code or other discount information in connection with such Order.

3. User Names and Passwords. In order to access certain features on this Site and to place an Order, you may be required to create an account. You are responsible for protecting and maintaining the secrecy of your username and password. ToGo will not be responsible or liable for any loss or damage that results from your failure to comply with this security obligation. You are solely responsible for any and all activities that occur under your account, whether or not you have authorized such activities. You agree to immediately notify ToGo of an unauthorized use of your username or password. ToGo reserves the right to terminate any account at any time for any reason.

4. Site Content.

   • (a) Except for Merchant content, all contents of this Site are ©ToGoTechnologies, LLC. All rights reserved. ToGo and the ToGo logo and all other logos, trademarks and service marks contained on this Site are trademarks of ToGo, LLC and/or third-party licensors. This Site contains copyrighted material, trademarks, service marks, trade dress and other proprietary content, including but not limited to text, software, sound, photographs, images, logos, icons, artwork, messages, video, graphics and the HTML used to generate the pages contained within this Site (the “Content”), and the entire selection, coordination, arrangement and “look and feel” of this Site and the Content are copyrighted as a collective work under United States copyright laws.

   • (b) Except as provided in these Terms, you may not use, modify, download, upload, copy, republish, frame, print, display, perform, reproduce, license, publish, delete, transfer, sell, assign, post, transmit, distribute, reverse engineer, create derivative works from, or otherwise exploit any Content or information from this Site, in whole or in part, for any commercial or public purpose, without the express written permission of ToGo.

   • (c) This Site is available worldwide to anyone with Internet access. However, this Site may not be continuously available. Further, the inclusion of any products, goods, restaurants, items, descriptions, or locations on this Site at a particular time does not guarantee that the products, goods, restaurants, items, descriptions, or locations will be available. The Content of this Site, including advertising content, is intended for use and display only where its use and display are permissible in accordance with applicable laws and regulations.

   • (d) Certain materials and designations on this Site may be furnished by third parties, including advertisements, or mentioned for identification purposes only. Third-party trademarks, trade names, logos, product or services names contained on this Site are the trademarks, registered or unregistered, of their respective owners. ToGo is not liable for any infringement of copyrights, trademarks, trade dress or other proprietary rights arising out of content posted on or transmitted through this Site, or items or products listed on this Site, by third parties.

   • (e) Nothing contained in these Terms shall be construed as conferring any other license or right, express or implied, under any of our intellectual property rights or under any third party's intellectual property rights. Any rights not expressly granted herein are reserved.

5. User Conduct. By using this Site, including placing an Order through the Site, you agree that you shall not:

   • (a) delete, modify, hack or attempt to change or alter any of the Content on the Site;

   • (b) use any device, software or routine intended to damage or otherwise interfere with the proper functioning of the Site or servers or networks connected to the Site, or take any other action that interferes with other parties' use of the Site;

   • (c) use any robot, spider or other automatic or manual device or process for the purpose of harvesting or compiling information on the Site for purposes other than for a generally available search engine;

   • (d) use any ToGo names, service marks, or trademarks without our prior written consent, including without limitation as metatags, search engine keywords, or hidden text;

   • (e) use any material or information, including images or photographs, which are made available through this Site in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party;

   • (f) upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property;

   • (g) impersonate any third party or provide false information on your account information; or

   • (h) use this Site in violation of any applicable law.

6. Permissible Use. Except as indicated to the contrary elsewhere on this Site, you may view, copy, retransmit and print materials and information available on this Site subject to the following conditions:

   • (a) the Content is used solely for personal, informational, or non-commercial purposes;

   • (b) the Content is not provided, sold, licensed or leased (nor is access provided to the Content) for any fee or other consideration;

   • (c) all copyright, trademark and other proprietary rights notices included in the Content as presented on this Site appear on all copies;

   • (d) the Content is not modified or altered in any way; and

   • (e) no graphics are used separately from accompanying text.

   You may also link or hyperlink to the home page of the Site from any Acceptable Site (as defined below), but only if:

   • (a) you do not frame the Site or any portion of the Site;

   • (b) you do not deep link into the Site (i.e., you do not link into any page other than the home page of the Site);

   • (c) the hyperlink to the Site is not used in a way that suggests that ToGo endorses you or your website;

   • (d) the link to the Site is not used or presented in any way that disparages ToGo or tarnishes, blurs or dilutes the quality of ToGo’s names or trademarks or any associated goodwill; and

   • (e) the link to the Site is not displayed on any web page that displays objectionable content or links.

   • An "Acceptable Site" means a website that displays no objectionable content, including, but not limited to, any content, information in any medium or format, such as text, data, graphics, audio or video, that: (i) is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized; (ii) a reasonable person would consider harassing, abusive, threatening, harmful, profane, obscene, racially, ethnically or otherwise objectionable or offensive in any way; (iii) constitutes a breach of any person's privacy or publicity rights, a misrepresentation of facts or hate speech; or (iv) violates or encourages others to violate any applicable law.

7. Termination of Site/Modifications to Site. ToGo reserves the right to modify or terminate your access to the Site (or portions of the Site) at any time, with or without notice to you, and is not obligated to support or update the Site. Sections 1-2, Sections 4-7, and Sections 9-16 of these Terms and the Privacy Policy shall survive any termination. You acknowledge and agree that ToGo will not be liable to you or any third party in the event that ToGo exercises its right to modify or terminate access to the Site or portions of the Site.

8. Other Sites, Content, Products and Services. As a convenience to you, this Site may provide links to web sites and access to content, products and services of third parties, including without limitation ToGo’s affiliates, advertisers, strategic partners and Merchants and other entities with which our connection consists of only a hyperlink (“Linked Sites”). You should refer to the separate terms of use, privacy policies, and other rules posted on Linked Sites before you use them. ToGo does not author, edit or monitor these Linked Sites, and is not responsible or liable for: (a) the availability of or content provided on such Linked Sites, nor does inclusion of any link imply endorsement of the Linked Sites by ToGo, or vice versa; (b) third-party content accessible through such Linked Sites; (c) any loss or damage whatsoever you may incur from dealing with any Linked Site; (d) your dealings with any third parties found on or through this Site; and (e) the accuracy, relevance, timeliness, completeness or appropriateness for a particular purpose of the information or the resources contained on these or any Internet sites. The fact that ToGo offers such links should not be construed in any way as an endorsement, authorization or sponsorship of that site or its content, products or services.

9. Typographical Errors. This Site may contain typographical mistakes, inaccuracies, or omissions, and some information may not be complete or current. ToGo therefore reserves the right to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies or omissions; and (iii) make changes to prices, Content, promotional offers, descriptions, or any other information without obligation to issue any notice of such changes.

10. Disclaimer. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THIS SITE AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SERVICES PROVIDED ON THIS SITE (WHETHER PROVIDED BY TOGO, MERCHANTS, YOU, OR THIRD PARTIES) ARE PROVIDED ON AN "AS IS, WHERE IS" AND "AS AVAILABLE" BASIS AND WITH ALL FAULTS. TOGO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. TOGO MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY OBLIGATION, THAT: (A) THE SITE WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (B) THE CONTENT OR ANY SUBMISSION WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE OR ACCURATE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, GOODS, ORDERS OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; (E) THAT DEFECTS, IF ANY, WILL BE CORRECTED; (F) THAT ALL ORDERS WILL BE FULFILLED; OR (G) THIS SITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

    YOU UNDERSTAND AND AGREE THAT ANY CONTENT, GOODS, ORDERS AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS SITE IS USED AT YOUR OWN RISK.

11. Limitation of Liability. IN NO EVENT SHALL TOGO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, INCREASED OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, REVENUE, DATA, GOODWILL OR USE INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), ARISING FROM ANY ORDER, YOUR ACCESS TO OR INABILITY TO ACCESS, OR USE OF, THIS SITE OR ANY SERVICES PROVIDED IN CONNECTION WITH THIS SITE, EVEN IF TOGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY APPLIES TO, BUT IS NOT LIMITED TO, THE TRANSMISSION OF ANY DISABLING DEVICE OR VIRUSES WHICH MAY INFECT YOUR EQUIPMENT OR SYSTEM, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, UNAUTHORIZED ACCESS, THEFT, BODILY INJURY, PROPERTY DAMAGE, ERRORS, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS OR ANY FORCE MAJEURE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF LIABILITY IN SOME CIRCUMSTANCES. CONSEQUENTLY, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL TOGO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE EXCEED (A) THE AMOUNT PAID BY YOU TO TOGO OR A MERCHANT FOR THE GOOD OR PRODUCT GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED DOLLARS ($100.00) (WHICHEVER IS LESS).

12. Indemnity. By using this Site, you agree to indemnify, defend and hold ToGo, its affiliates, shareholders, directors, officers, employees and agents (collectively, the ToGo Indemnitees”) harmless from and against any claim, demand, liability, dispute, damage, cost, expense, or loss, including attorneys' fees and costs of litigation, arising out of or in any way related to (i) your use of or access to this Site and/or any Content; or (ii) your violation of these Terms. You agree to cooperate as fully as reasonably required in the defense of any claim. ToGo reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you for which you will remain responsible for indemnifying and holding harmless the ToGo Indemnitees.

13. Limitation on Actions Brought Against ToGo. You agree that any claim or cause of action arising out of your use of this Site or these Terms must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by ToGo to enforce or exercise any provision of these Terms or related right shall not constitute a waiver of that right or provision.

14. Dispute Resolution. These Terms shall be governed exclusively by the laws of the State of Tennessee, without regard to its conflicts or choice of law rules. EACH PARTY ALSO HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION RELATED TO THESE TERMS. All disputes or claims arising out of or related to these Terms shall be determined exclusively by arbitration in accordance with the expedited rules of Judicial Arbitration and Mediation Services (“JAMS”) before a single arbitrator. Such arbitration shall be conducted in Nashville, Tennessee. The award of such arbitration shall be confidential, final, binding and non-appealable, except to the extent provided for in the rules of JAMS, and judgment on the arbitration award may be entered into any court having jurisdiction. Each party shall bear its own legal fees and costs. Notwithstanding the foregoing, a party may seek injunctive relief from any court of competent jurisdiction pending the outcome of any dispute resolution procedure set forth in this section. ARBITRATOR SHALL NOT AWARD ANY PARTY DAMAGES THAT ARE INCONSISTENT WITH THESE TERMS.

    BECAUSE THE USE OF THIS SITE REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATORS' DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.

    Should this Section 14 be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that exclusive jurisdiction and venue for any claims will be in state or federal courts in Nashville, Tennessee.

15. General. If any provision in these Terms is found by a court or arbitrator to be invalid, the parties agree that the court or arbitrator should give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect. ToGo’s failure to act with respect to a breach by any visitor using the Site does not constitute a waiver of its right to act with respect to subsequent or similar breaches. These Terms will be governed by and construed in accordance with the laws of the State of Tennessee without regard to its choice of law provisions. In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States will govern. These Terms and the Privacy Policy as posted from time to time by ToGo on this Site, and any modifications to the foregoing, constitute the entire agreement between the parties with regard to the subject matter in these Terms and supersede all prior understandings and agreements, whether written or oral, as to such subject matter.

16. Acknowledgement; Copyright Protection; Contact Information. You acknowledge (a) that you have read and understood these Terms; and (b) that these Terms have the same force and effect as a signed agreement. If you have any questions about these Terms, the practices of ToGo, or your dealings with this Site, please contact us through the address below. We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you think somebody is violating your copyrights and want to notify us, please visit http://ToGoTechnologies.com

ToGoTechnologies, LLC
2300 Charlotte Avenue 
Suite 103 
P.O. Box 340020 
Nashville, Tennessee 37203-0020

10209103.11