Please read the terms and conditions ("Terms and Conditions") set out below carefully before ordering any Goods or Services from this Website. By ordering any Goods or Services from this Website, by phone, or by our mobile applications you agree to be bound by these Terms and Conditions. You acknowledge and agree that, as provided in greater detail in these Terms:
- The Service is provided “as is” without warranties of any kind and Earlybirds’s liability to you is limited;
- Disputes arising hereunder will be resolved by binding arbitration, and by accepting these terms, you are waiving the right to a trial by Jury or to participate in a class action. You agree to give up your right to go to court to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a neautrl arbitrator and Not a judge or jury and your claims cannot be brought as a class action. Please review arbitration provisions below for additional details regarding your agreement to arbitrate any disputes with Earlybirds.
Section 1: Definitions
1.3. "you", "your" and "yours" are references to you the person accessing this Website and ordering any Goods or Services from the Website or from any other channel provided by foodpanda;
1.4. "we", "us", "our", and "Earlybirds" are references to the Company;
1.5. "Goods" is a reference to any goods which we may offer for sale from our Website from time to time;
1.6. "Service" or "Services" is a reference to any service which we may supply and which you may request via our Website;
1.7. "Website" or “The Site” is a reference to our Website http://www.earlybirds.my or our mobile applications on which we offer our Goods or Services.
Section 2: Overview
2.1. The Service provides users of the App the ability to order freshly prepared food for delivery to users’ homes and businesses.
2.2. Eligibility. You must be at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least thirteen (13) years of age; (ii) you have not previously been suspended or removed from the Service; (iii) you will provide wholly accurate information regarding your account and will comply with these Terms; and (iv) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
Section 3: Accounts and Registration
3.1. Earlybirds Account. To access most features of the Service, you must register for an account. When you register for an account, you will be required to provide us with some information about yourself (such as your name, email address or other contact information, as well as your credit card number, phone number and delivery address). We do not store your credit card information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
3.2. Third Party Accounts. In order to download the App, you may be required by third parties who are providing services in connection with the App, such as Apple, Inc. and Google Inc. (each, a “Service Provider”) to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Service Provider. Your access and use of any account with a Service Provider, including in connection with the Service, is subject to any terms, conditions, and policies, including privacy policies, of that Service Provider. Earlybirds is not responsible for any act or omission of any Service Provider.
3.3. Cancellation Policy. Due to the nature of the Service, orders are considered final as soon as they are placed. That said, we do make exceptions on a case-by-case basis. If you would like to cancel an order, please e-mail us at firstname.lastname@example.org.
3.4. License to the App. Subject to your complete and ongoing compliance with all the terms and conditions set forth in these Terms (including without limitation payment of any applicable fees and compliance with all license restrictions), Earlybirds grants you (i) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from EARLYBIRDS or from a legitimate marketplace (such as the Apple App Store), solely in object code format and solely for your personal use for lawful purposes, on a single compatible mobile device that you own or control; and (ii) permission to access and use the Service, only for your personal use, and solely through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the Service for any purpose other than a purpose for which the Service is expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Earlybirds (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
3.5. Access to the Service; Third Party Fees. Earlybirds does not provide you with the equipment to access or use the Service. You are responsible for all fees charged by third parties to access and use the Service (e.g., charges by Carriers). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your access and use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier. If your device is lost or stolen, you must notify Earlybirds immediately to suspend the Service.
Section 4: User Content
4.1. User Content Generally. Certain features of the Service may permit users to post content, including messages, reviews, photos, video, images, folders, data, text, and other types of works (collectively, “User Content”) and to publish User Content on or through the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
4.2. Limited License Grant to Earlybirds. By posting or publishing User Content, you grant Earlybirds a worldwide, non-exclusive, irrevocable, transferable, perpetual, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any such use of your User Content by Earlybirds may be without any compensation paid to you.
4.3. Limited License Grant to Other Users. By posting and sharing User Content with another user of the Service, you hereby grant that user a non-exclusive license to access and use such User Content as permitted by these Terms and the functionality of the Service.
4.4. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Earlybirds and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in these Terms and in the manner contemplated by Earlybirds and these Terms; and
- your User Content, and use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person.
4.5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Earlybirds may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Earlybirds with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Earlybirds does not permit copyright-infringing activities on the Service.
Section 5: Digital Millennium Copyright Act
5.1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact us through email@example.com.
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
5.2. Repeat Infringers. Earlybirds will promptly terminate without notice the accounts of users that are determined by Earlybirds to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.
5.3. Prohibited Conduct. By using the Service, you agree not to:
- use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
- post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
- interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that such activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
- perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted by these Terms or any Materials (as defined below) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the prohibited acts described in these Terms, or assist or permit any persons in engaging in any of the acts described in these Terms.
5.4. Third-Party Services and Linked Websites. Earlybirds may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Earlybirds with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
Section 6: Promotions
6.1. How It Works. In connection with a promotion, we may offer you the ability to earn credits toward future purchases via the Service. Our promotion program may offer you the ability to invite your friends to open an account with Earlybirds and to receive a credit when those friends place a Qualifying Order (defined below).
6.2. We reserve the right to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies, or omission; and (iii) make changes to prices, content, promotion offers, product descriptions or specifications, or other information without obligation to issue any notice of such changes (including after an order has been submitted, acknowledged, shipped, or received, except as prohibited by law). We also reserve the right to revise, suspend, or terminate a promotion at any time without notice (including after an order has been submitted and/or acknowledged).
6.3. Conditions. In addition to agreeing to other conditions set forth in these Terms, you must agree to the following in order to participate in any promotions offered by Earlybirds:
- To participate as a Referrer and to redeem the related Earlybirds promotion, you must have a Earlybirds account with valid payment or debit card on file.
- To participate as a Referee and to redeem the related Earlybirds promotion, you must create, for the first time, a Earlybirds account with valid payment or debit card on file.
- You will not create additional Earlybirds accounts or use false names in order to send or receive a promotion.
Section 7: Limitation of Liability
7.1. Great care has been taken to ensure that the information available on this Website is correct and error free. We apologize for any errors or omissions that may have occurred. We cannot warrant that use of the Website will be error free or fit for purpose, timely, that defects will be corrected, or that the site or the server that makes it available are free of viruses or bugs or represents the full functionality, accuracy, reliability of the Website and we do not make any warranty whatsoever, whether express or implied, relating to fitness for purpose, or accuracy.
7.3. We disclaim any and all liability to you for the supply of the Food Delivery, Goods and Services to the fullest extent permissible under applicable law. This does not affect your statutory rights as a consumer. If we are found liable for any loss or damage to you such liability is limited to the amount you have paid for the relevant Goods or Services. We cannot accept any liability for any loss, damage or expense, including any direct or indirect loss such as loss of profits to you, howsoever arising. This limitation of liability does not apply to personal injury or death arising as a direct result of our negligence.
7.4. We do not accept any liability for any delays, failures, errors or omissions or loss of transmitted information, viruses or other contamination or destructive properties transmitted to you or your computer system via our Website.
7.5. We shall not be held liable for any failure or delay in performing Services or delivering Goods where such failure arises as a result of any act or omission, which is outside our reasonable control such as all overwhelming and unpreventable events caused directly and exclusively by forces of nature that can be neither anticipated, nor controlled, nor prevented by the exercise of prudence, diligence, and care, including but not limited to: war, riot, civil commotion; compliance with any law or governmental order, rule, regulation or direction and acts of third parties.
7.6. If we have contracted to provide identical or similar order to more than one Customer and are prevented from fully meeting our obligations to you by reason of an Event of Force Majeure, we may decide at our absolute discretion which orders we will fill and to what extent.
7.7. The products sold by us are provided for private domestic and consumer use only. Accordingly, we do not accept liability for any indirect loss, consequential loss, loss of data, loss of income or profit, loss of damage to property and/or loss from claims of third parties arising out of the use of the Website or for any products or services purchased from us.
7.8. We have taken all reasonable steps to prevent Internet fraud and ensure any data collected from you is stored as securely and safely as possible. However, we cannot be held liable in the extremely unlikely event of a breach in our secure computer servers or those of third parties.
7.9. In the event Earlybirds has a reasonable belief that there exists an abuse of vouchers and/or discount codes or in suspected instances of fraud, Earlybirds may cause the shopper (or customer) to be blocked immediately and reserves the right to refuse future service. Additionally, should there exist an abuse of vouchers or discount codes, Earlybirds reserves the right to seek compensation from any and all violators.
7.10. Offers are subject to Earlybird's discretion and may be withdrawn at any time and without notice.
8.1. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Earlybirds, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your access or use of the Service incurred prior to termination.
8.3. Proprietary Rights. The Service is owned and operated by Earlybirds. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, App(s), services, and all other elements of the Service (the “Materials”) provided by Earlybirds are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Earlybirds or our third-party licensors. Except as expressly authorized by Earlybirds, you may not make use of the Materials. Earlybirds reserves all rights to the Materials not granted expressly in these Terms.
Section 9: Indemnity
9.1. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Earlybirds and its affiliates and their respective officers, directors, employees, consultants, Service Providers and agents (collectively, the “Earlybirds Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
Section 10: Dispute Resolution and Arbitration
10.1. You and Earlybirds agree that any and all disputes arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EARLYBIRDS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
10.2. Notwithstanding the paragraph above, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
10.3. Arbitrator. Any arbitration between you and EARLYBIRDS will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Earlybirds.
10.4. Notice. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Earlybirds address for notice is email@example.com. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Earlybirds may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Earlybirds must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Earlybirds will pay you: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Earlybirds in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000.00, whichever is greater.
10.5. Fees If you commence arbitration in accordance with these Terms, Earlybirds will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Mateo County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse EARLYBIRDS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
10.6. No Class Actions. You and Earlybirds agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Earlybirds agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
10.7. Modifications. If Earlybirds makes any future change to this arbitration provision (other than a change to Earlybirds’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Earlybirds 's address for Notice, in which case your account with Earlybirds will immediately be terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
10.8. Enforceability. If any of these arbitration provisions is found to be unenforceable or if the entirety of these arbitration provisions are found to be unenforceable, then the entirety of these arbitration provisions will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described under the paragraph entitled “Governing Law” will govern any action arising out of or related to these Terms.
Section 11: General Terms
11.1. Additional Terms. Your access and use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
11.2. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect at the time the dispute arose.
11.3. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Earlybirds agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.