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Welcome to MidniteCrunch. PLEASE READ THE FOLLOWING TERMS OF USE AND DISCLAIMER CAREFULLY BEFORE USING THIS WEB SITE ("Site"). This Agreement (the "Agreement") is an agreement between you and Midnite Crunch ("MidniteCrunch") that states the terms and conditions under which you may use the Site and receive the MidniteCrunch service, which includes processing and delivery of product orders (the "Crunch Service"). Note that special terms for corporate depot and for MidniteCrunch Corporate Services customers are contained at the end of this Agreement, and, where applicable, those terms supplement or, to the degree that they are inconsistent, supersede these terms. Your use of the MidniteCrunch Service and the Site constitutes your agreement to the terms and conditions set forth below. If you do not agree with all of the terms and conditions, do not use the Site or the MidniteCrunch Service.
If you have any questions about this Agreement or the Site please access our Customer Agreement Frequently Asked Questions in the bottom section of the Site or call our Customer Service team at 1-888-NOW-0200.
Midnite Crunch Satisfaction Guarantee
All of our products and services are backed by a 100% customer satisfaction guarantee. If you are dissatisfied for any reason, we want to make it right. Just call us at 1-888-NOW-0200, contact us via e-mail at info@midnitecrunch.com or log on and use our Customer Inquiry e-mail. You have up to 2 hours after delivery, or until the expiration date printed on the product -- whichever is earlier -- to return food or perishable products and 24 hours for frozen products. MidniteCrunch may require the return of the product with which you are dissatisfied before we substitute an acceptable item or issue a credit voucher.
Midnite Crunch Service
Ordering through the Site. Available delivery windows and associated delivery charges will be shown as you proceed through the ordering process. You can place your order anytime, up to 2 years before your delivery date. You can modify an existing order (including the addition or deletion of items, a change in the time or delivery date, and the cancellation of your order) via the Web (place an additional indicated "modified" order) up until the time of dispatch for the delivery. You may cancel orders by contacting our Customer Service Department at 1-888-NOW-0200 at any time. However, modified orders are subject to price changes and a change of a delivery date may not guarantee the availability of your desired items. Cancellation of orders after the time of dispatch of a delivery associate will result in a restocking fee equal to the sum of the total dollar amount of your items, including fees and tax.
Price and Availability. At Midnite Crunch we believe in offering our customers the best product at the best price. We deliver our products fresh from the provider every day to assure you the highest quality. Although our goal is to fulfill 100% of each order, given the perishable nature of our products, from time to time products may be unavailable due to market conditions beyond our control or to quality that is below our standards. At times when we have an item that's very similar to the item you ordered, we may make a substitution. If you're not happy with the replacement, please email us at info@midnitecrunch.com. We reserve the right to limit your order or the quantity of a particular product that you may order. If we are unable to fulfill your entire order we will make every reasonable effort to contact you prior to delivery. Once you complete checkout, your price, or price per pound/ounce where applicable, is guaranteed unless you placed an order for an item where we have inadvertently listed the incorrect price. In those circumstances, we reserve the right to cancel undelivered orders for such incorrectly priced products; we will contact you immediately in such circumstances, and, of course, your credit card or checking account will not be charged.
Delivery of Products. Midnite Crunch purchases your food immediately before delivery to maintain the quality and integrity of your products. To maintain the integrity of products after delivery, we recommend that you immediately refrigerate or freeze perishable items. We guarantee your products (with the exception of frozen items) will remain fresh in the delivery box at room temperature (78 degrees) for two (2) hours from the time of delivery. Frozen items must immediately be placed in a freezer.
To receive delivery, you must live in a residential apartment or home and you or your doorman must be present to receive your order from our driver during your selected delivery window. Additionally, after your second order with Midnite Crunch you may elect an alternate receiver located within your building to accept your delivery. This alternate receiver can accept your goods when you are not present at the time you had selected for delivery and shall accept the goods under all of the same terms and conditions that would apply had you accepted the delivery yourself. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the delivery. If neither you, your doorman, nor your alternate receiver is present during your selected delivery window, we will use commercially reasonable efforts to contact you and reschedule delivery (a $4.99 redelivery fee applies) for that night. In such case, if we are unable to redeliver the order to you for any reason, the order will be canceled and you will be charged a fee equal to the sum of the total dollar amount of your delivered items.
In an effort to meet the committed delivery time for all of our customers, our delivery personnel cannot wait for an inspection of the items delivered. Your order will arrive with a reciept from the picked up location that will list all of the items you have received and were billed for. If something is missing from your order, please call our Customer Service department at 1-888-NOW-0200 or log on and contact us via our Customer Inquiry e-mail form.
In the case of inclement weather, or unforeseen delivery complications, it may be necessary to make adjustments to our delivery schedule, which will cause us to suspend chosen delivery dates and times. If there will be a significant delay, a customer service representative may call or e-mail you to let you know the status of your delivery time. We will deliver your order the first possible moment the conditions permit. We will never deliver an order past 12:30 AM without a customer's consent. If your designated delivery location (i.e., street, avenue, etc.) or day is inaccessible, rendering us unable to make the delivery, we will contact you to determine the best alternate location and/or date.
Midnite Crunch Drivers are allowed to accept tips. Customers are under no obligation to tip Drivers but are encouraged to do so if exceptional service is provided by the Driver.
Credit Card Payment. Your credit/debit card will be charged for your order on the day your order is delivered. Midnite Crunch will not process orders that use an incorrect, expired, or over-the-limit credit card. We will make our best efforts to contact you if this occurs. However, in the event such an order is processed, Midnite Crunch reserves the right to collect funds for any uncollected transactions owed to it. Midnite Crunch may charge a nominal fee of $2 per order should a payment made via credit card be declined resulting in the need for alternate payment or exception processing.. If you fail to pay any fees or charges when due (which would include if an electronic payment is rejected) or if a redelivery fee or restocking fee is imposed, Midnite Crunch may charge such amount directly to the credit card identified in your Customer Account Information and Midnite Crunch may suspend or terminate your access to the Midnite Crunch Service. You shall be responsible and liable for any fees, including attorneys' fees and collection costs, that Midnite Crunch may incur in its efforts to collect any unpaid balances from you. Your right to use the Midnite Crunch Service is subject to limits established by Midnite Crunch and/or by your credit card issuer.
Checking Account Payment. To be eligible to pay for your order from a checking account, the following three conditions must be met: 1) You must have received and paid for at least two prior orders. 2) There must be a valid credit card attached to your Midnite Crunch customer account. 3) Your Midnite Crunch customer account must be in good standing.
Your checking account payment will be processed after your food has been prepared. Midnite Crunch will not process orders that use an incorrect or overdrawn checking account. We will make our best efforts to contact you if this occurs. However, in the event such an order is processed, Midnite Crunch reserves the right to collect funds for any uncollected transactions owed to it. Midnite Crunch will automatically attempt to process checking account payments two times. If the first request is declined, Midnite Crunch may charge a nominal fee of $2 per order to cover the cost of exception processing. If the second request is declined, Midnite Crunch will charge a $25 bounced check fee. Additionally, in the event that sufficient funds are not available in your checking account, Midnite Crunch will charge the full amount of the order to your credit card.
If you fail to pay any fees or charges when due or if a redelivery fee or restocking fee is imposed, Midnite Crunch may charge such amount directly to the credit card identified in your Customer Account Information and may suspend or terminate your access to the Midnite Crunch Service. You shall be responsible and liable for any fees, including attorneys' fees and collection costs, that Midnite Crunch may incur in its efforts to collect any unpaid balances from you. Your right to use the Midnite Crunch Service is subject to limits established by Midnite Crunch and/or by your bank. Midnite Crunch reserves the right to withdraw the online check payment option from any account for any reason at any time.
Midnite Crunch does not accept paper checks or food stamps at this time.
Third-Party Information Providers and Merchants. The Midnite Crunch Service permits you to order and receive products, information, and services from businesses that are not owned or operated by Midnite Crunch. In these instances, Midnite Crunch acts only as the link between you and such businesses. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the merchandise, services, or information ordered or received from such businesses are covered by their customer agreement and policies and solely between you and such businesses. Midnite Crunch makes no representations or warranties of any kind, express or implied, regarding the merchandise, services, or information received from such third parties and the fact that Midnite Crunch makes such products, information, and services available should not be construed as an endorsement of the businesses or the products, services, and information they provide, unless chosen to as a paid sponsor.
License and Proprietary Rights
Copyright and Ownership. All Site content, design, text, graphics, and interfaces; the collection, selection, and arrangement thereof; and all software are the property of, or duly licensed to, Midnite Crunch. Consent is granted to view, electronically copy, and print in hard copy portions of this Site for the sole purpose of placing an order with Midnite Crunch for your use. Any other use of materials on this Site, including modification, distribution, or reproduction for purposes other than those noted above, without the prior written permission of Midnite Crunch is strictly prohibited. You acknowledge that Midnite Crunch and/or third-party content providers remain the owners of such material and that you do not acquire any of those ownership rights by downloading copyrighted material. Midnite Crunch reserves the right to revoke this authorization at any time, and any use shall be discontinued immediately on written notice from Midnite Crunch.
Trademarks. "Midnite Crunch," all Midnite Crunch logos, and all titles, characters, names, graphics, and button icons are service marks, trademarks, and/or trade dress of Midnite Crunch or otherwise proprietary to Midnite Crunch and may not be used by you for any reason other than as expressly permitted by this Agreement. All other trademarks, service marks, product names, and company names or logos appearing in the Midnite Crunch Service and on the Site are the property of their respective owners and you do not acquire any ownership rights in such marks, logos, or names by using this Site or the Midnite Crunch Service.
Access to the Midnite Crunch Service
Access. You will provide all equipment and services and be responsible for all telephone and other charges necessary to access the Midnite Crunch Service and the Site. You should contact your local telephone company if you have a question about whether an access number is a long-distance or toll call from your location. You agree to comply with all laws applicable to your activities on the Midnite Crunch Site and with the terms of this Agreement. You hereby represent that you are an adult (18 years or older) and have the power and authority to enter into this Agreement and perform your obligations hereunder.
You acknowledge that from time to time the Midnite Crunch Service or this Site may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Midnite Crunch may undertake from time to time; or (iii) causes beyond the control of Midnite Crunch or which are not reasonably foreseeable by Midnite Crunch.
ID Number and Passwords. Access to the Midnite Crunch Service is accomplished through the use of a user name and a password that will be issued to you upon registration (if applicable). You are solely responsible for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your password and all use or charges incurred from use of the Midnite Crunch Service with your password. You agree to notify Midnite Crunch promptly of any unauthorized use of your password and you will remain liable for any use of the Midnite Crunch Service until you notify Midnite Crunch of the unauthorized use of your password.
Your Account. You are responsible for, and agree to pay promptly, all charges to your account, including applicable taxes and purchases by you or anyone you allow to use your account and password to access the Midnite Crunch Service. You agree and accept responsibility for keeping all your account information current, including address, payment information, telephone number, e-mail address, and alternate receiver for your order. You can update your information by contacting our Customer Service department. You agree that you will not provide fraudulent information and that you are solely responsible for any information you provide to Midnite Crunch, and accept responsibility for all activities that occur under your account or password and for restricting access to your computer. You will comply with all laws applicable to your activities on the Site and with this Agreement. Midnite Crunch's secure server encrypts your payment information so that it cannot be read as the information travels over the Internet. Once we receive your payment information, it is stored in our secure data center. Midnite Crunch will exercise commercially reasonable efforts to ensure that your payment information remains confidential, and is available only to personnel who have a need to know such information in connection with providing you the Midnite Crunch Service. When our registration/order form asks users to enter sensitive information (such as credit card number), that information is encrypted and is protected with encryption software. Our Site encrypts your credit card and bank account number prior to transmission over the Internet using secure socket layer (SSL) encryption technology. This technology works best when the Site is viewed using Microsoft's Internet Explorer or Netscape Navigator.
Purchase of Alcoholic Beverages. By law, purchasers of alcoholic beverages must be at least twenty-one (21) years of age. You may not legally order any alcoholic beverages unless you are at least twenty-one (21) years of age. Furthermore, you may not purchase alcoholic beverages for anyone who is under the age of twenty-one (21). You must present identification and proof of age at the time of delivery to receive alcoholic beverages. Midnite Crunch reserves the right to refuse service, terminate accounts, remove alcoholic beverages, or cancel orders at its sole discretion. Please note that beer, wine and/or other forms of alcoholic beverages are not available in all areas.
Corrections. If you would like to update or correct information previously provided to us, please send an e-mail with your new information to info@midnitecrunch.com, or you can update your account information yourself by going to Your Account on the Midnite Crunch Site.
Privacy Policy. Please review our Privacy Policy, which also governs your visit to the Midnite Crunch Site and use of the Midnite Crunch Service, to understand our practices.
Acceptable Use Policy
You are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in unacceptable use of the Midnite Crunch Service, which includes, without limitation, use of the Midnite Crunch Service to: (a) disseminate or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail; (b) disseminate or transmit material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious; (c) disseminate or transmit files, graphics, software, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, or other intellectual property right of any person; (d) create a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export, or permit downloading of any message or content in violation of any export or import law, regulation, or restriction of the United States and its agencies and authorities, or without all required approvals, licenses, or exemptions; (f) interfere with, disrupt, or attempt to gain unauthorized access to other accounts on the Midnite Crunch Service or any other computer network; (g) disseminate or transmit viruses, Trojan horses, or any other malicious code or program; or (h) engage in any other activity deemed by Midnite Crunch to be in conflict with the spirit or intent of this Agreement.
Warranty Disclaimer; Limitation of Liability; Indemnification
YOU EXPRESSLY AGREE THAT USE OF THE MIDNITE CRUNCH SERVICE, THE SITE, AND THE INTERNET IS ENTIRELY AT YOUR OWN RISK. THE MIDNITE CRUNCH SERVICE, THE SITE, AND ITS CONTENTS ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MIDNITE CRUNCH DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE MIDNITE CRUNCH SERVICE, THE SITE, OR ITS CONTENTS OR WITH RESPECT TO ANY INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE MIDNITE CRUNCH SERVICE; MIDNITE CRUNCH DOES NOT ADOPT ANY REPRESENTATION OR WARRANTY OF ANY MANUFACTURER OR MERCHANT OF ANY SUCH INFORMATION, SERVICE, OR PRODUCTS. MIDNITE CRUNCH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF ANY INFORMATION, SERVICES, OR PRODUCTS OBTAINED THROUGH THE SITE OR THE MIDNITE CRUNCH SERVICES. MIDNITE CRUNCH DOES NOT WARRANT THAT THE FUNCTIONS PROVIDED BY THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
NEITHER MIDNITE CRUNCH NOR ANY OF ITS DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, OR LICENSORS (COLLECTIVELY, "MIDNITE CRUNCH PARTIES") SHALL BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES; LOSS OF DATA, INCOME, OR PROFIT; OR LOSS OR DAMAGE TO PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SITE, THE MIDNITE CRUNCH SERVICE, OR THE INTERNET. MIDNITE CRUNCH'S LIABILITY SHALL BE LIMITED TO PROVIDING YOU WITH A REFUND FOR ANY PRODUCT THAT IS RETURNED. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE MIDNITE CRUNCH SERVICE AND TO TERMINATE THIS AGREEMENT. MIDNITE CRUNCH RESERVES THE RIGHT TO LIMIT YOUR ORDER OR THE QUANTITY OF A SPECIFIC PRODUCT YOU MAY ORDER. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OR OF IMPLIED WARRANTIES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
The material in the Site is provided for lawful purposes only. Midnite Crunch controls and operates this Site from its headquarters in Jamaica Estates, New York, USA, and makes no representation that these materials are appropriate or available for use in other locations. If you use the Site from other locations, you are responsible for compliance with applicable local laws. Price and availability information is subject to change without notice.
You agree to defend, indemnify, and hold Midnite Crunch Parties harmless from any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, and expenses, including attorney's fees and costs, arising in connection with a violation of this Agreement by you or through use of your account.
Miscellaneous
Termination. This Agreement is effective upon your acceptance as set forth herein and shall continue in full force and effect until terminated. Midnite Crunch may suspend or terminate this Agreement or the Midnite Crunch Service or remove or disable access to any portion of the Midnite Crunch Service at any time for any reason with or without notice to you. You may terminate this Agreement and your Midnite Crunch Service at any time for any reason by delivering notice in the manner provided below, which termination will be effective the day notice is received or such later date specified in the notice. Midnite Crunch reserves the right to collect fees and charges incurred before you cancel your Midnite Crunch Service. In addition, you are responsible for any charges incurred to third-party vendors or content providers prior to your cancellation.
Notices. Midnite Crunch may give notice to you of a change in this Agreement, a change in the Midnite Crunch Fee Schedule, and any other matter through a general posting on the Midnite Crunch Site, by electronic mail, or by conventional mail to your address contained in the Customer Registration Data. You may give notice to Midnite Crunch by telephone at 1-888-NOW-0200, by electronic mail (as specified in the "Help" section of the Midnite Crunch Web site).
Entire Agreement. This Agreement and the Privacy Policy referred to herein represent your entire agreement with Midnite Crunch regarding the use of the Midnite Crunch Service and the Midnite Crunch Site. You agree that this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than you, Midnite Crunch, and Midnite Crunch Parties. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of the parties, and the remainder of this Agreement shall remain in full force and effect. The failure of either party to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws rules. You expressly agree that exclusive jurisdiction for any claim or dispute with Midnite Crunch or relating in any way to your use of the Midnite Crunch Service or the Midnite Crunch Site resides in the federal and state courts of New York and you further expressly consent and agree to personal jurisdiction by the state and federal courts sitting in the State of New York in connection with any such dispute, including any claim involving Midnite Crunch Parties. Any cause of action by you must be instituted within one year after the claim or cause of action has arisen, or be barred.
Third-Party Beneficiaries. The provisions of this Agreement are for the benefit of Midnite Crunch Parties, and each shall have the right to assert and enforce the provisions directly on their own behalf. This Agreement and all obligations and restrictions placed upon you or your permitted users by this Agreement shall survive termination of this Agreement and your Midnite Crunch Service.
Amendment. Midnite Crunch may amend this Agreement at any time by posting the amended terms on our Site. All amended terms shall automatically be effective seven days after they are initially posted on our Site. By using this Site after the effective date of any such amendment, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current Agreement to which you are bound. This Agreement was last revised on July 22, 2009.
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