(a) These terms and conditions (these “Terms”) are the only terms that govern the provision of services by Food Truck Feeds, LLC, an Arizona limited liability company (“Company”), to you or your entity or organization (collectively, the “Client”). These Terms are a binding contract between Company and the Client, which means that if the Client uses the Services (defined below), the Client acknowledges and agrees that the Client has read, understand, and agree to be bound by these Terms.
(b) These Terms comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
(c) These Terms prevail over the Client’s terms and conditions, if any, regardless of whether or when Client has submitted its request to book one or more food trucks for its place of business or an event (each, an “Event”). Company’s provision of the Services to the Client does not constitute acceptance of any of the Client’s terms and conditions and does not serve to modify or amend these Terms.
(a) In accordance with these Terms, Company provides coordination services (the “Services”) between qualified food trucks (each, a “Food Truck” and collectively, the “Food Trucks”) and third parties such as the Client that wish to book one or more Food Trucks for an Event. The Services are provided complimentary to the Client.
(b) Company will work with the Client to identify and book one or more Food Trucks for the Event, including communicating with the Food Trucks on behalf of the Client. Company will use commercially reasonable efforts to identify and book a Food Truck based on preferences provided by Client, if any; provided, however, Company does not guarantee that a specific Food Truck will be booked for an Event. In the event that a Food Truck booked for an Event cancels in advance or does not appear for an Event, Company will use commercially reasonable efforts to identify and book a substitute Food Truck for such Event.
(c) Company’s review of a Food Truck that is listed on its website is limited to the following actions: (i) performing an on-site inspection of the Food Tuck, including sampling the food and reviewing the menu for applicability for the Clients; (ii) upon request by the Client, reviewing the certificate(s) of insurance provided by the Food Truck for the required insurance coverage set forth in Section 2(d) below and any other insurance coverage required by the Client at the time of the booking for an Event, and providing such certificate(s) of insurance to the Client; and (iii) upon request by the Client, reviewing the licenses, city permits, and health permits, as applicable, provided by the Food Truck to confirm they are not expired, and providing such licenses, city permits, or health permits to the Client.
(d) The Client acknowledges and agrees that Company requires each Food Truck to maintain the following insurance coverages in order to book an Event: (i) commercial general liability insurance (including product liability) in an amount no less than $2,000,000 in the general aggregate and $1,000,000 for each occurrence; (ii) automobile liability insurance in an amount not less than $1,000,000 for each accident; (iii) in the event the Food Truck has employees, employers liability insurance in an amount no less than $1,000,000 for each accident, employee, and policy limit or the minimum amount required by applicable state statute, whichever is greater; and (iv) in the event the Food Truck has employees, workers’ compensation insurance in an amount no less than $500,000 or the minimum amount required by applicable state statute, whichever is greater. Upon the Client’s request that a Food Truck provide certificate(s) of insurance or insurance declaration page(s) from the Food Truck’s insurance carrier(s) evidencing the insurance coverages specified in this Section 2(d), the Company will request them from such Food Truck. Each certificate of insurance will name as additional insureds Company, and if requested by the Client for which the Food Truck has been booked for an Event, the Client. Failure to provide the required certificate(s) of insurance or insurance declaration page(s) prior to arriving at an Event will result in the Food Truck being removed from the Client’s premises.
(e) The Client acknowledges and agrees that: (i) Company is not a caterer, food truck, or other food preparer; (ii) the Food Trucks available through the Services are independent of Company and are subject to laws, rules, regulations, ordinances, and standards regarding their businesses and services; (iii) Company makes no warranties oral, express, written, or otherwise regarding the Food Trucks available through the Services; (iv) Company does not verify and is not responsible for any Food Truck’s compliance with the laws, rules, regulations, ordinances, and standards regarding their businesses and services; (v) Company does not asses or guarantee the quality or suitability of any Food Truck’s food, products, services, menus, descriptions, or other disclosures; and (vi) Company is not responsible for any Food Truck’s acts or omissions.
(f) Company may provide (i) information and content provided by third parties (for example, the Food Trucks); and (ii) links to third-party websites or resources (for example, links to the Food Trucks’ social media pages). Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (x) any content, advertising, products, or other materials on or available from such third parties; (y) any errors or omissions by such third parties; or (z) any information handling practices or other business practices of such third parties. The Client further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any third-party websites, products, services, or other resources. The Client’s interactions with such third parties will be governed by the third parties’ own terms of service, privacy policy, and any other similar terms.
3. Client’s Obligations. The Client, at its own expense, shall:
(a) cooperate with Company in all matters relating to the Services;
(b) cooperate with the Food Trucks before, during, and after the Event, including arranging or providing a suitable location at the Client’s premises for the Food Trucks to park and perform its services (which includes set-up and preparation prior to the Event);
(c) be liable for any damage to the Food Trucks by any invitees, licensees, guests, agents, independent contractors, consultants, owners, or employees of the Client during the Event;
(d) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform the Services in accordance with the requirements of these Terms;
(e) provide such Client materials or information as Company may reasonably request to carry out the Services in a timely manner and ensuring that such Client materials or information are complete and accurate in all material respects;
(f) obtain and maintain all necessary licenses, insurance coverages, permits, and consents required to hold the Event;
(g) comply with all applicable laws, rules, regulations, ordinances, and standards regarding the Event, including but not limited to complying with all health and safety requirements of all applicable governmental departments and agencies; and
(h) inform Company immediately of a cancellation of an Event or whenever there is a change to any of the information provided to Company when booking an Event, including but not limited to the Client’s contact information, the date and the times of the Event, the location of the Event, and the expected number of guests. In the event the Client changes the date or the times of the Event, Company cannot guarantee that the Food Truck(s) booked for the rescheduled Event will be the same as the one(s) for the originally scheduled Event.
4. Client’s Acts or Omissions. If Company’s performance of its obligations under these Terms is prevented or delayed by any act or omission of the Client or its agents, subcontractors, consultants, owners, or employees, Company shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by the Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
(a) THE CLIENT AGREES THAT THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND COMPANY SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
(b) COMPANY DOES NOT ASSESS OR GUARANTEE THE QUALITY, SUITABILITY, LEGALITY, SAFETY OR ABILITY OF THE FOOD TRUCKS. COMPANY RELIES UPON THE FOOD TRUCKS TO PROVIDE ACCURATE CALORIC, ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH ITS WEBSITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, INCLUDING WITHOUT LIMITATION MENUS, NUTRITIONAL, CALORIC, AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE CLIENT AGREES THAT THE ENTIRE RISK ARISING OUT OF THE CLIENT’S USE OF COMPANY’S WEBSITE, INFORMATION PROVIDED ON COMPANY’S WEBSITE, AND ANY SERVICE OR PRODUCT REQUESTED THROUGH COMPANY’S WEBSITE REMAINS SOLELY WITH THE CLIENT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
6. Limitation of Liability.
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY FOR BOOKING THE EVENT.
(c) The limitation of liability set forth in Section 6(b) above shall not apply to liability resulting from Company’s willful misconduct.
7. Indemnification. To the fullest extent permitted by law, the Client agrees to indemnify and hold harmless Company, its affiliates, and their respective managers, officers, directors, owners, employees, and agents (collectively, “Representatives”), for, from and against any and all damages or other amounts payable to a third party claimant, as well as any reasonable attorneys’ fees and costs of litigation (collectively, “Damages”) arising out of or resulting from any demand, claim, suit, proceeding or cause of action (each a “Claim”) brought by a third party against Company, its affiliates, or any of their respective Representatives based on (a) breach of any of these Terms by the Client or any of its agents, independent contractors, consultants, owners, or employees, (b) failure by the Client or any of its agents, independent contractors, consultants, owners, or employees to comply with applicable laws, or (c) the negligent or intentional acts or omissions of the Client or any of its agents, independent contractors, consultants, owners, or employees, including for injuries or death to any persons or damage to property. Company agrees to notify the Client within a reasonable time of any written Claims against the Client for which the Client is responsible under this Section 7. The Client agrees to submit to the jurisdiction of any court wherein an action is commenced against Company based on a claim for which the Client has agreed to indemnify Company, its affiliates, and their respective Representatives under these Terms.
8. Termination. In addition to any remedies that may be provided under these Terms, Company may terminate the provision of the Services to the Client with immediate effect upon written notice to the Client, if the Client:
(a) has not performed or complied with any of these Terms, in whole or in part;
(b) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors ; or
(c) has filed a statement of dissolution or the equivalent, has been administratively dissolved, the charter or the equivalent has been revoked, or the right to conduct business in Arizona has been suspended by its jurisdiction of formation.
9. Waiver. No waiver by Company of any of these Terms is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages, or slowdowns or other industrial disturbances; or (h) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give written notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 7 consecutive days following written notice given by it under this Section 10, Company may thereafter terminate the Services upon written notice to the Client. In the event that the Client cancels its Event due to weather, Company will use commercially reasonable efforts to reschedule the Client and the Food Truck(s).
11. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have any express or implied right or authority to assume or create any obligation on behalf of, or in the name of, the other party to any contract, agreement, or undertaking with any third party. The parties acknowledge that these Terms are non-exclusive, and nothing is these Terms will not be construed to prevent Company from performing the Services for other persons or entities, or from advertising the Services to the public.
12. No Third-Party Beneficiaries; Assignment. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. The Client may not assign or delegate any rights granted to the Client by these Terms. Company may assign or delegate any rights granted to it by these Terms without restriction.
13. Governing Law; Venue Attorneys’ Fees; WAIVER OF JURY TRIAL. These Terms, including, without limitation, their validity, construction, interpretation, enforcement, and the rights of the parties hereto with respect to the matters arising hereunder, are exclusively governed by and construed under the laws of the State of Arizona without regard to conflicts of laws principles. If there is any litigation, each party will be deemed to have submitted to the jurisdiction of the courts of the State of Arizona and will be deemed to have agreed that the courts of the State of Arizona will be the sole and exclusive forum for any litigation arising out of or which is based upon the provisions of these Terms and that venue in any such litigation will be in Maricopa County, Arizona. In the event any party to these Terms brings any action to enforce any provision hereof, to secure specific performance hereof, or to collect damages of any kind for any breach of these Terms, the prevailing party shall be entitled to all costs, all expenses arising out of or incurred by reason of such proceedings, and any reasonable attorneys’ fees expended or incurred in any such proceedings, and all such costs and expenses shall be included in the judgment or arbitration award, as the case may be. THE PARTIES EACH HEREBY WAIVES A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION RELATING TO THESE TERMS AND ACKNOWLEDGES THAT THIS WAIVER IS KNOWINGLY, FREELY AND VOLUNTARILY GIVEN, IS DESIRED BY THEM, AND IS IN THEIR RESPECTIVE BEST INTERESTS.
14. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at: (a) 1334 E. Chandler #5A03, Phoenix, AZ, 85048, if to Company; (b) the address set forth in the Client’s booking of an Event, if to the Client; or (c) to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section 14.
15. Severability. If any of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other Terms or invalidate or render unenforceable such other Terms in any other jurisdiction.
16. Survival. Any of these Terms, which by their nature should apply beyond termination of the Services will remain in force after any termination of the Services.
17. Changes to These Terms. Company may revise these Terms at any time. If Company revises these Terms, Company will give the Client notice of any revisions in accordance with legal requirements. If the Client does not agree to, or cannot comply with, any modified Terms, the Client must stop using the Services. The Client’s continued use of the Services after any such update constitutes the Client’s binding acceptance of such changes. The Terms were most recently updated on the last modified date at the bottom of these Terms.
18. Dispute Resolution.
(a) In the event any dispute arises in connection with these Terms, the aggrieved party will provide the other party with a statement describing the dispute in reasonable detail, and the parties will use reasonable efforts, including telephone conferences or in-person meetings by representatives authorized to settle the dispute, to resolve the dispute within 10 business days. If any dispute cannot be so resolved within 10 business days, each party agrees that as a precondition to the initiation of arbitration (other than to compel compliance with this Section 18 or seeking temporary, preliminary, or permanent injunctive relief or any other form of equitable relief), the parties will submit the dispute to mediation by one mutually-agreed upon mediator and reasonably participate in such mediation. All offers, promises, conduct and statements, whether oral or written, made pursuant to this Section 18 by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in informal negotiations or mediation.
(b) If any dispute between the parties cannot be resolved through informal negotiations or mediation set forth in Section 18(a), the parties shall submit the dispute, including the determination of the scope or applicability of this agreement to arbitrate, to binding arbitration to be held in person in Phoenix, Arizona. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “Rules”). There shall be a single arbitrator selected by mutual agreement of the parties, and in the absence of agreement, appointed according to the Rules. The parties agree to the exchange of information as provided under the Rules. The parties will conduct discovery as agreed to by the parties. Judgment on the award entered in the arbitration may be thereupon entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.