Terms and Conditions
Last Updated: 23rd October 2019
1. ACCEPTANCE OF THIS TERMS AND CONDITIONS
1.1. This Terms and Conditions applies to all User (as hereinafter defined) of the Mobile Application (as hereinafter defined) and constitutes a legal agreement between yourself and FOODISH SDN BHD (hereinafter collectively referred to as “Foodish”, “we”, “us” or “our”) governing your access to and use of the Mobile Application and enjoy our Services (as hereinafter defined).
1.2 By accessing and using the Mobile Application, you are deemed to have read, understood and agreed to be bound by this Terms and Conditions without limitation or qualification notwithstanding the fact that you have not read this Terms and Conditions.
1.3 Foodish reserves the right to amend any part and/or all of this Terms and Conditions from time to time at Foodish’s sole and absolute discretion without prior notice to you. You are advised to check from time to time should there is any amendment made by us towards this Terms and Conditions. Any access or use of the Mobile Application by you on and after the date of such amendments signifies your agreement towards such amendments and Foodish shall not be liable on any ground due to such amendments.
1.4 Please read this Terms and Conditions carefully. If you do not agree to or are not satisfied with any of the terms or conditions of this Terms and Conditions, please discontinue from accessing or using the Mobile Application immediately and if you have Foodish Account (as hereinafter defined) and Mobile Application, please deactivate and delete the same, respectively.
In this Terms and Conditions, unless the context otherwise provides, the following words and expressions shall have and be deemed to have the following meanings:
means any data, information or other content which includes without limitation, any components, location information, information, data, text, features, internet-based services, photographs, programmes, software, scripts, tools, graphics, interactive features generated and any updates, provided or otherwise made accessible by Foodish on or through the Services via the Mobile Application;
means your Mobile Application account which is linked to your e-mail address;
“Force Majeure event”
means any events or series of events beyond the reasonable control of a party including (without limitation) acts of government, change of governmental policy, national disorder, declaration of a state of national emergency, significant economic downturn, outbreak of infectious diseases of epidemic proportions, strikes, lock-outs, fire, explosion, flooding, civil commotion, acts of war, sabotage, acts of God, acts of terrorism or accidents which has or is likely to have the effect of making any material part of this Terms and Conditions incapable of performance on its terms;
“Intellectual Property Rights”
means all present and future rights conferred by statute, common law or equity in or in relation to any copyright which include the source codes and object codes of the Software, trade mark, industrial design, patent, business method, domain name, trade secret and any other intellectual property right in any field or industry and “Intellectual Property” means property created or arising from any such rights;
means any and all losses, damages (financial and otherwise), injuries, embarrassments, costs, charges, taxes, duties, levies, penalties and/or expenses of whatsoever nature, including legal fees on a full indemnity basis;
refers to Foodish’s mobile application provided by Foodish which may be accessed and utilized by you via mobile phone application downloadable at https://apps.apple.com/us/app/foodish/id1378193407 (for iOS devices) and https://play.google.com/store/apps/details?id=com.foodish.foodish (for Android devices) in accordance with this Terms and Conditions which consists of the Content and Services;
means a portable and wireless telecommunications device together with accessories including but not limited to smartphones and handheld tablets used by you to access the Mobile Application and/or use the Services;
means any data, information or other content posted, added, created, submitted, uploaded, transmitted or displayed by the User via the Mobile Application, which includes, without limitation, recommendation, critique, photographs, description and location information;
means the services, features, content, applications or widgets offered by Foodish and any other services as may be introduced by us from time to time via the Mobile Application;
means the software in respect of the Mobile Application owned by Foodish together with any enhancement, modification, alteration, updates, new releases made to the Software (if there is any);
“Terms and Conditions”
“User”, “You/you” or “Your/your”
refers to you or any other person or entity having access and use the Mobile Application.
3. FOODISH ACCOUNT AND ELIGIBILITY
3.2 You hereby represent, warrant and covenant that all information (including, but not limited to your e-mail address) provided to us on the Mobile Application is true, accurate and complete and you agree to provide us with up-to-date information of yourself including such identification, verification or other documentation as we or other relevant and lawful authorities may request from time to time. Failure to do so shall constitute a breach of this Terms and Conditions, which may result in immediate suspension or termination of your Foodish Account.
3.3 You shall not:
(a) create any account for anyone other than yourself without such person’s permission;
(b) use a user name that is the name of another person with the intent to impersonate that person;
(c) use a user name or Foodish Account that is subject to any rights of a person other than you without appropriate authorisation; or
(d) use a user name that is a name that is otherwise offensive, vulgar or obscene or otherwise unlawful.
3.4 Foodish reserves the right to refuse the creation of Foodish Account in its sole discretion. You are solely responsible and liable for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password. You shall never use another User's account without such other User's prior express permission. You will immediately notify Foodish in writing of any unauthorized use of your account, or other account related security breach of which you are aware.
3.5 You represent and warrant that if you are an individual, you are of legal age and have the capacity to form a binding contract, or that if you are registering on behalf of an entity, that you are authorized to enter into, and bind the entity to, this Terms and Conditions and to create Foodish Account. Foodish may, in its sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that this Terms and Conditions are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where this Terms and Conditions or use of the Services is prohibited by laws, rules and regulations applicable to you and, in such circumstances, you agree not to access or use the Mobile Application or Services in any way.
4. FOODISH CONTENT AND SERVICES
4.1 Foodish may change the Content at any time and for any reason. You will be entitled to download updates to the Mobile Application, subject to any additional terms (if any) made known to you prior to such downloading by you.
4.2 Foodish grants you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Mobile Application solely to access and use the Services for personal and non-commercial use in accordance to the terms and conditions of this Terms and Conditions and as permitted by the usage rules set forth for your particular Mobile Device.
4.3 For the avoidance of doubt and notwithstanding anything contained in this Terms and Conditions, you agree and acknowledge that Foodish reserves the sole right and discretion to limit, cancel or suspend any or all of the Services offered through the Mobile Application in whole or in part at any time without giving any reason or explanation of the same and without incurring any liability whatsoever to you for doing so.
5. ACCESS AND USE
5.1 Mobile Application
(a) Foodish does not allow its Mobile Application to be used for illegal activities. Foodish has the right to take preventative or corrective actions to protect itself and its User. You must not use the Mobile Application or your Foodish Account in any way that causes, or is likely to cause, the Mobile Application, the Foodish Account or access to it to be interrupted, damaged or impaired in any way and you are required to use the Mobile Application lawfully and in compliance with the legal requirements. You are required to understand and acknowledge that all Post whether publicly posted or privately transmitted via the Mobile Application, are the sole responsibility of the User from whom such Post originates. You are required to understand and acknowledge that by using the Mobile Application, you may be exposed to the Post that may be offensive, indecent or objectionable. Under no circumstances Foodish shall be liable in any way for any content, including, any exposure to offensive, indecent or objectionable Post, any errors or omissions in any Post, or for any loss or damage of any kind resulting from any reliance to such information in relation to any Post.
(b) You are prohibited from using the Mobile Application in respect of the following:
(c) For fraudulent purposes, or with an intention to commit criminal offence or other unlawful, indecent or immoral activity;
(d) To send, use or reuse any material that is illegal, offensive, abusive, indecent, defamatory, obscene or menacing; or use it to breach copyright, trademark, confidence, privacy or any other right; or is otherwise injurious to third parties; or use it in an objectionable manner or likely to cause or stir racial or religious disharmony; or which consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any spam;
(e) To cause annoyance, inconvenience or needless anxiety or be a nuisance;
(f) To programme, send, use or reuse any data that contains any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or other personal information; and
(g) Do anything that creates liability for us or cause Foodish to lose (in whole or in part) the services of our ISPs.
(h) If you use, or attempt to use, the Mobile Application for purposes other than for the Services, including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of the Mobile Application, your Foodish Account will be automatically terminated and you will be liable to claim of damages and/or may be penalised for, including criminal prosecution where applicable.
(i) You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the Mobile Application. You acknowledge that all rights, title and interest to the Mobile Application are owned by Foodish.
(j) You agree that your rights to access the Mobile Application or use the Services cease immediately upon Deactivation, Deletion, Suspension or Termination of your Foodish Account (as provided under Clause 13 herein).
5.2 Mobile Device
Foodish does not make any warranty, representation and/or undertaking (expressly, impliedly or otherwise) that the Mobile Application and any subsequent revisions, modifications, updates, upgrades or versions is and would be compatible with your Mobile Device. It is your responsibility to ensure that the Mobile Application is and will be compatible with your Mobile Device at all times and you acknowledge and agree that Foodish shall not be liable in any manner whatsoever for any liability, loss, damages, cost and expense suffered and/or incurred by you due to the Mobile Application being incompatible with your Mobile Device.
5.3 Your Post
When you submit, upload, transmit or display your Post, you understand and agree that:
(a) you will continue to own and be responsible for your Post;
(b) you grant other User a non-exclusive licence to access and use (including sharing and reposting) your Post within Foodish, in accordance with this Terms and Conditions and Foodish's functionalities;
(d) you agree that your Post is subjected to this Terms and Conditions, Foodish photo submission guideline and Foodish’s recommendation and critique guidelines which includes the following (which may be amended by Foodish from time to time):
ii. no posting of content relating to illegal activity, including but not limited to drug activity, pornography, underage drinking or smoking;
iii. no attacks on race or religion or allegation of racism;
iv. no spamming and harassment of User;
v. no disparaging remarks about User’s comment;
vi. no sedition comments;
vii. no use of any obscene or inappropriate language;
viii. no advertising in any form or kind is allowed, especially from establishment owners and employees;
ix. no abuse of establishment owners and staff will be allowed. Recommendation or critiques are strictly prohibited from identifying establishment owners or staff by name, and are not allowed to harass, abuse, make false statements, defame, impersonate someone else or conduct anything illegal or otherwise objectionable content;
x. you must submit original recommendation and critiques that represent your own true, honest and actual experiences;
xi. any recommendation or critiques that contain accusation of illegal activity, malpractice, health code violations (e.g. food poisoning) and false advertising will be removed from the Mobile Application; and
xii. any recommendation or critique that is deemed to be off-topic may be removed.
(e) you understand that all information publicly posted or privately transmitted through the Mobile Application is the sole responsibility of the User from which such Post originated, and you agree that Foodish shall not be responsible to verify the accuracy of the Post and shall not be liable for any errors, inaccuracy or omissions in any Post (which includes but not limited to the inaccuracy of the food restrictions) and Foodish gives no guarantee as to the real identity of any other User with whom you may interact in the course of using the Services;
(f) when you delete your Post, they will be removed from the Mobile Application. However, you understand that any removed Post may persist in backup copies for a reasonable period of time (but following removal will not be shared with others) or may remain with User who have previously accessed or downloaded your Post;
(h) you represent and warrant that you have all rights to grant such license to use without infringement or violation of any third party rights, including without limitation, any privacy rights, copyrights, contract rights, or any other intellectual property or proprietary rights;
(j) we may use your user name (used in connection with your Foodish Account) in connection with your Post (whether that be your account name, real name or otherwise) provided that the same does not contradict with any of the terms and conditions in this Terms and Conditions; and
(k) we reserves the right to :
i. remove, suspend, edit or modify the Post at our own sole discretion, including without limitation any Post at any time, without notice to you and for any reason (including, but not limited to, upon receipt of report, claims or allegations from third parties or authorities relating to such Post or in the event Foodish is concerned that you may violate or you have violated this Terms and Conditions), or for no reason at all; and
ii. remove, suspend or block any Post at our absolute discretion.
You are solely responsible for maintaining the confidentiality, security and care of your Mobile Device and the details of your Foodish Account. You are responsible for all activities, authorized or not, made using your Foodish Account. You shall not disclose your password to any person. You are under a duty to exercise utmost care, diligence and precautions to safeguard your Mobile Device from loss, theft or fraudulent use of your Mobile Device to prevent any unauthorized use of your Foodish Account.
7. INTELLECTUAL PROPERTY RIGHTS
You agree and acknowledge that Foodish is the owner of all the Intellectual Property Rights relating to the Mobile Application and you shall not at any time do, or cause to be done, any act or thing, which may impair Foodish’s rights over the Intellectual Property Rights in respect of the Mobile Application and these include but not limited to the following, by its own act or omission or through any third (3rd) party:
(a) copy or modify the Mobile Application;
(b) attempt to view, read, modify, reverse compile, reverse assemble, disassemble or print the Mobile Application’s source code or object code or other runtime objects or files distributed with the Mobile Application; and
(c) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Mobile Application.
The Mobile Application is provided on an “as is” and “as available” basis. We make no representation or warranty, express or implied, that the Services or any feature or function thereof shall always be accurate, reliable, timely, secure or defect free, or that the Services will be uninterrupted and available at all or any particular time or location. You accept that we do not represent or warrant that the Mobile Application, system or Software will be error-free at all times. You are also aware and acknowledge that the Services rely on third party technologies and facilities including wireless connectivity which are not within our control. You acknowledge the characteristics and limitations of digital and wireless networks and that data may be corrupted, delayed or lost despite security and other measures taken by us. You agree not to hold us liable for any failures as highlighted above. You expressly agree that your access and use of the Mobile Application and the Services are at your sole risk and discretion and you will assume total responsibility in respect thereto. You will rely on your own review and evaluation of the Services to assess its suitability for your particular purpose. Your sole remedy against us in the event of dissatisfaction is to cease using the Mobile Application and the Services.
You shall at all times indemnify, keep indemnified and hold harmless Foodish from and against any Loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by Foodish arising from any proceedings against Foodish where such Loss or liability was caused by, inter alia, your breach of any of the terms and conditions of this Term and Conditions, your act, neglect or default or your wrongful use of the Mobile Application and the Services resulting in any successful claim by any third (3rd) party.
10. DISCLAIMER OF LIABILITY
Foodish shall not be liable for any Loss or liability suffered by you, which may arise in respect of the usage of the Mobile Application and/or the Services, including any cause of action based on warranty, contract, tort, strict liability, patent or copyright infringement, misappropriation of intellectual property or food allergies arising from reliance of the food restrictions as on the Mobile Application. Foodish shall not be liable for any kind of damages including not limited to consequential, incidental, indirect, special, exemplary or punitive damages, whether in contract, in tort (including negligence) or otherwise, or for any loss of profits (including loss of profits arising from critiques made by you or other User on the Mobile Application) and loss of data arising out of this Terms and Conditions or the use (or inability to use) of the Mobile Application and/or the Services even if Foodish is aware of the possibility of such potential Loss or damage.
11. FORCE MAJEURE
Without limiting the generality of any provision in this Terms and Conditions, Foodish shall not be liable for any non-performance and/or delay in performance of its obligations herein (including but not limited to the non-availability and/or interruption in the Services) caused by Force Majeure.
12. THIRD PARTY SITES AND SERVICES
The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Mobile Application. When you access third party websites, you do so at your own risk. These other websites are not under Foodish's control, and you acknowledge that Foodish is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Foodish or any association with its operators. You further acknowledge and agree that Foodish 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 the use of or reliance on any such content, goods or services available on or through any such website or resource.
13. DEACTIVATION, DELETION, SUSPENSION AND TERMINATION
13.1 You may deactivate your Foodish Account at any time, subject to the steps to be taken for the deactivation of your Foodish Account, as provided by us on the Mobile Application (“Deactivation”). Some of your information or Post may remain visible to other User on the Mobile Application notwithstanding such Deactivation. You may choose to reactivate your Foodish Account subject to the steps to be taken as provided by us on the Mobile Application (“Reactivate”). Failure to Reactivate your Foodish Account within certain period as determined by Foodish will cause your Foodish Account to be terminated and Foodish shall not be responsible for such termination.
13.2 You may delete your Foodish Account at any time, subject to the steps to be taken for the deletion of your Foodish Account, as provided by us on the Mobile Application (“Deletion”). Unlike Deactivation, once your Foodish Account has been deleted, you will not be able to Reactive and you are required to create new Foodish Account should you wish to access and use the Mobile Application.
13.3 You agree and acknowledge that Foodish has the right to suspend or terminate your Foodish Account without being obliged to provide any reason for such suspension or termination or to respond to any request for information from yourself (“Suspension or Termination”). Any suspension to your Foodish Account may be lifted by Foodish at our absolute discretion.
13.4 Upon Deactivation, Deletion, Suspension or Termination of your Foodish Account, your right to access the Mobile Application and use the Services shall cease immediately.
13.5 Foodish is not responsible for any consequences arising from your inability to access the Mobile Application and use the Services for whatever reason, including due to lost or forgotten password, Deactivation, Deletion, Suspension or Termination of your Foodish Account.
13.6 You agree and acknowledge that you shall not hold Foodish liable for any Loss, which you may suffer as a result of the Deactivation, Deletion, Suspension or Termination of your Foodish Account.
14. HOW TO CONTACT US
If you have any queries relating to this Terms and Conditions, please write to:-
Attention to : Felix Yii
The relationship between your goodself and Foodish under and in relation to this Terms and Conditions shall be limited to the matters herein contained and nothing herein provided shall be considered or interpreted as constituting the relationship of your goodself and Foodish as a partnership, association or other relationship in which either party may be liable for the acts or omissions of the other party, nor shall anything herein contained be considered or interpreted as constituting any party as the general agent of the other party.
Failure by Foodish to enforce, at any time, any provision of this Terms and Conditions shall not be construed as a waiver of its right to enforce the breach of such provision or any other provision in this Terms and Conditions or as a waiver of any continuing, succeeding or subsequent breach of any provision or other provision of this Terms and Conditions.
If any provision of this Terms and Conditions is held by a court or other competent authority to be unlawful, void or unenforceable, it shall be deemed to be severed from this Terms and Conditions and shall be of no force and effect and this Terms and Conditions shall remain in full force and effect as if such provision had not originally been contained in this Terms and Conditions. In the event of any such severance the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable and satisfactory alternative provision in place of the provision so severed.
Unless otherwise mentioned herein, you hereby acknowledge and agree that:
(a) you shall not assign or attempt to assign any of your rights and obligations under this Terms and Conditions; and
(b) Foodish may assign any of its rights and obligations under this Terms and Conditions to its related party(ies).
15.5 English version of this Terms and Conditions
In the event of inconsistency between the English version and the Bahasa Malaysia version or Mandarin version of this Terms and Conditions, the English version shall prevail to the extent of such inconsistency.
15.6 Governing Law & Dispute Resolution
This Terms and Conditions shall be governed by and construed in accordance with the laws of Malaysia and you agree to submit to the exclusive jurisdiction of the Malaysian Court.