Effective: January 3, 2023
PLEASE READ THESE CONSUMER TERMS AND CONDITIONS CAREFULLY. THESE CONSUMER TERMS AND CONDITIONS (“AGREEMENT,” “TERMS AND CONDITIONS,” OR “TERMS”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND VIVAFOODS, AS DEFINED BELOW, AS WELL AS CERTAIN ASPECTS OF SALES AGREEMENTS AND DELIVERY AGREEMENTS CONCLUDED THROUGH THE VIVAFOODS PLATFORM (AS DEFINED BELOW). BY SIGNING UP IN THE VIVAFOODS PLATFORM, THE USER AGREES TO THE APPLICATION AND CONTENT OF THESE GENERAL TERMS AND IS INFORMED ABOUT THE PROCESSING OF HIS/HER PERSONAL DATA DISCLOSED DURING REGISTRATION AND USE OF THE VIVA FOODS PLATFORM ON THE CONDITIONS SET OUT IN THESE GENERAL TERMS.
SUPPLEMENTAL TERMS MAY APPLY TO CERTAIN SERVICES, SUCH AS POLICIES FOR A PARTICULAR EVENT, ACTIVITY OR PROMOTION, AND SUCH SUPPLEMENTAL TERMS WILL BE DISCLOSED TO YOU IN CONNECTION WITH THE APPLICABLE SERVICES. SUPPLEMENTAL TERMS ARE IN ADDITION TO, AND SHALL BE DEEMED A PART OF, THE TERMS FOR THE PURPOSES OF THE APPLICABLE SERVICES. SUPPLEMENTAL TERMS SHALL PREVAIL OVER THESE TERMS IN THE EVENT OF A CONFLICT WITH RESPECT TO THE APPLICABLE SERVICES.
VIVAFOODS MAY AMEND THE TERMS RELATED TO THE SERVICES FROM TIME TO TIME. AMENDMENTS WILL BE EFFECTIVE UPON VIVAFOODS’S POSTING OF SUCH UPDATED TERMS AT THIS LOCATION OR THE AMENDED POLICIES OR SUPPLEMENTAL TERMS ON THE APPLICABLE SERVICE. YOUR CONTINUED ACCESS OR USE OF THE SERVICES AFTER SUCH POSTING CONSTITUTES YOUR CONSENT TO BE BOUND BY THE TERMS, AS AMENDED.
BY OPERATING THE VIVAFOODS PLATFORM, VIVAFOODS ACTS AS THE AGENT FOR THE PARTNERS IN RELATION TO MEDIATION OF SALES AGREEMENTS BETWEEN THE PARTNERS AND THE CONSUMERS. VIVAFOODS ALSO ACTS AS THE AGENT FOR THE COURIERS IN RELATION TO MEDIATION OF DELIVERY AGREEMENTS BETWEEN THE COURIERS AND THE CONSUMERS. AS THE AGENT VIVAFOODS HAS BEEN AUTHORISED BY EACH PARTNER AND EACH COURIER TO RECEIVE PAYMENTS FROM THE CONSUMERS ON BEHALF OF THE RESPECTIVE PRINCIPAL AND ALLOCATE THE RECEIVED FUNDS BETWEEN THE PARTNERS AND THE COURIERS.
OUR COLLECTION AND USE OF PERSONAL INFORMATION IN CONNECTION WITH THE SERVICES IS AS PROVIDED IN VIVAFOOD’S PRIVACY POLICY. VIVAFOODS MAY PROVIDE TO A CLAIMS PROCESSOR OR AN INSURER ANY NECESSARY INFORMATION (INCLUDING YOUR CONTACT INFORMATION) IF THERE IS A COMPLAINT, DISPUTE OR CONFLICT, WHICH MAY INCLUDE AN ACCIDENT, INVOLVING YOU AND A THIRD PARTY PROVIDER (INCLUDING A TRANSPORTATION NETWORK COMPANY DRIVER) AND SUCH INFORMATION OR DATA IS NECESSARY TO RESOLVE THE COMPLAINT, DISPUTE OR CONFLICT.
1. Application of this Agreement
This Agreement governs your use of the Technology and Services (each as defined below) and is between you and VivaFoods. “VivaFoods,” “we,” “us,” and “our” mean VivaFoods, Ltd., a Limited Liability company incorporated in Ghana.
2. Acceptance of this Agreement
VivaFoods uses its online marketplace platform to connect you and restaurants and other businesses (“Merchants”), and independent third-party contractors who provide delivery and/or other services (“Contractors”). VivaFood’s Technology (as defined below) permits consumers to place orders for food and/or other goods from Merchants, either for delivery or pickup, and/or request services from Merchants. By operating the VivaFoods Platform and the Marketplace, VivaFoods acts only as a provider of the information society service and is neither a party to the Sales Agreement or the Delivery Agreement. If a delivery order is made, VivaFoods uses the Technology to notify Contractors (or, for certain orders, Merchants) that a delivery opportunity is available and to facilitate completion of the delivery to the consumer. If a pickup order is made, VivaFoods uses the Technology to communicate with the consumer regarding the availability of the order for pickup. VivaFoods is not a merchant, retailer, restaurant, grocer, delivery service, or food preparation business and is not liable in any way for the performance of the Sales Agreement or the Delivery Agreement.
3. User Accounts
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age to obtain an Account. Account registration requires you to submit to VivaFoods certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or VivaFood’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by VivaFoods in writing, you may only possess one Account.
4. Rules and Prohibitions
Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:
(a) You will only use the Services for lawful purposes and you will not use or attempt to use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes.
(b) You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, other intellectual property rights, or other rights of any third party, including privacy, personality, or publicity rights.
(C) You will only use or access the Services using means explicitly authorised by VivaFoods. If applicable, it is your responsibility to ensure you download the correct Technology for your device. We are not liable if you do not have a compatible device or if you have downloaded the wrong version of the Technology for your device. We reserve the right to terminate your use of the Technology and/or Services should you be using the Technology or Services with an incompatible or unauthorised device.
(d) You will not use or attempt to use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
(e) You will not use or attempt to use the Services to cause nuisance, annoyance, or inconvenience.
(f) You will not use or attempt to use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting, or selling to any Merchant, User, or Contractor, unless VivaFoods has given you prior permission to do so in writing.
(g) You will not copy or distribute, or attempt to copy or distribute, the Technology or any content displayed through the Services, including any reviews or Merchants’ menu content or catalogs, for republication in any format or media.
(h) You will not directly or indirectly create or compile, or attempt to create or compile, any content or collection, compilation, or other directory from any content displayed through the Services except for your personal, noncommercial use.
(i) The information you provide to us when you register an account or otherwise communicate with us is accurate, you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
(j) You will keep secure and confidential your account password and any other login or identification credentials you use to access the Services.
(k) You will use the Technology and Services only for your own use and will not directly or indirectly resell, license, or transfer the Technology, Services, or content displayed by the Services to a third party.
(l) You will not use or attempt to use the Services in any way that could damage, disable, overburden, or impair any VivaFoods server or the networks connected to any VivaFoods server.
(m) You will not attempt to gain unauthorised access to any part of the Technology or the Services and/or to any account, resource, computer system, and/or network connected to any VivaFoods server.
(n) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures VivaFoods may use to prevent or restrict access to the Services or use of the Services or the content therein, and you will not attempt any of the foregoing.
(o) You will not deep-link to our websites or access our websites manually or with any robot, spider, web crawler, extraction software, automated process, and/or device to scrape, copy, index, frame, or monitor any portion of our websites or any content on our websites, and you will not attempt any of the foregoing.
(p) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services, and you will not attempt any of the foregoing.
(q) You will not engage in conduct that harms, attempts to harm, or threatens the safety of other Users, Merchants, Contractors, VivaFoods, VivaFoods employees, or our community in any way whatsoever, and you will take reasonable steps to prevent the foregoing.
(r) You will not engage in threatening, harassing, racist, or sexist behavior or any other behavior that VivaFoods deems inappropriate when using the Services.
(s) You will report any errors, bugs, unauthorised access methodologies, or any breach of our intellectual property rights that you uncover in your use of the Services.
(t) You will not abuse or attempt to abuse our promotional or credit code system, including by redeeming multiple coupons at once or by opening multiple accounts to benefit from offers available only to first-time Users.
(u) Your participation in using the Services is for your sole, personal, or internal business use.
(v) You will not falsely or fraudulently claim that your order or items from your order were missing, incorrect, of poor quality, defective, or never delivered.
(w) By creating an Account, you agree that the Services may send you text (SMS) messages as part of the normal business operation of your use of the Services.
In the event that we believe or determine that you have breached any of the aforementioned, we reserve the right to suspend and/or permanently deactivate your account at our sole discretion.
5. Contractors and Merchants Are Independent
(a) You understand and agree that VivaFoods provides the Services to connect you with independent Merchants that provide the products and services offered through the Services, and independent third-party Contractors who provide delivery and other services. You acknowledge and agree that VivaFoods is not a merchant, retailer, restaurant, grocer, delivery service, or food preparation business, and has no responsibility or liability for the acts or omissions of any Merchant or any Contractor. Merchants are the retailers of the products or services offered through the Services. Vivafoods is not in the delivery business, does not provide delivery services, and is not a common carrier. VivaFoods provides the services to facilitate the transmission of orders by Users to Merchants, including orders for pickup or delivery by Contractors and/or Merchants. VivaFoods will not assess or guarantee the suitability, legality, or ability of any Contractor or Merchant. You agree that VivaFoods is not responsible for the Merchants’ food preparation or product offerings, food or product handling, or the safety of the food or other products, or whether the photographs, images, menu or product listings, catalog, item descriptions, or other menu, product, or catalog information (including nutrition, ingredient, and/or allergen information) displayed through the Services accurately reflect the goods and services sold by the Merchants and/or delivered by the Contractor and/or Merchant, and does not verify Merchants’ compliance with applicable laws or regulations. You also acknowledge and agree that menu, product, or catalog listings, descriptions, or other information (including photographs or images or nutrition, ingredient, and/or allergen information) displayed through the Services may not have been provided directly by the Merchant. VivaFoods has no responsibility or liability for acts or omissions by any Merchant or Contractor. You agree that the goods that you purchase will be prepared by the Merchant you have selected, that title to the goods passes from the Merchant to you at the Merchant’s location, and that, for delivery orders, the Contractor and/or Merchant will be directed by your instructions to transport the products to your designated delivery location. You agree that neither the Contractor nor VivaFoods holds title to or acquires any ownership interest in any goods that you order through the Services. You must not do anything which seeks to create an encumbrance, lien, charge, or other interest in or over the goods that you order until title has passed to you.
5. Contractors and Merchants Are Independent
(a) You understand and agree that VivaFoods provides the Services to connect you with independent Merchants that provide the products and services offered through the Services, and independent third-party Contractors who provide delivery and other services. You acknowledge and agree that VivaFoods is not a merchant, retailer, restaurant, grocer, delivery service, or food preparation business, and has no responsibility or liability for the acts or omissions of any Merchant or any Contractor. Merchants are the retailers of the products or services offered through the Services. Vivafoods is not in the delivery business, does not provide delivery services, and is not a common carrier. VivaFoods provides the services to facilitate the transmission of orders by Users to Merchants, including orders for pickup or delivery by Contractors and/or Merchants. VivaFoods will not assess or guarantee the suitability, legality, or ability of any Contractor or Merchant. You agree that VivaFoods is not responsible for the Merchants’ food preparation or product offerings, food or product handling, or the safety of the food or other products, or whether the photographs, images, menu or product listings, catalog, item descriptions, or other menu, product, or catalog information (including nutrition, ingredient, and/or allergen information) displayed through the Services accurately reflect the goods and services sold by the Merchants and/or delivered by the Contractor and/or Merchant, and does not verify Merchants’ compliance with applicable laws or regulations. You also acknowledge and agree that menu, product, or catalog listings, descriptions, or other information (including photographs or images or nutrition, ingredient, and/or allergen information) displayed through the Services may not have been provided directly by the Merchant. VivaFoods has no responsibility or liability for acts or omissions by any Merchant or Contractor. You agree that the goods that you purchase will be prepared by the Merchant you have selected, that title to the goods passes from the Merchant to you at the Merchant’s location, and that, for delivery orders, the Contractor and/or Merchant will be directed by your instructions to transport the products to your designated delivery location. You agree that neither the Contractor nor VivaFoods holds title to or acquires any ownership interest in any goods that you order through the Services. You must not do anything which seeks to create an encumbrance, lien, charge, or other interest in or over the goods that you order until title has passed to you.
6. Communications with VivaFoods
By creating a VivaFoods account or using the Technology or Services, you agree to accept and receive communications from VivaFoods, Contractors, Merchants, or third parties providing services to you or VivaFoods, including via email, text message, direct message, chat, calls, and push notifications to the cellular telephone number you provided to VivaFoods. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of VivaFoods and/or Contractors, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. For certain types of communications (for example, marketing, research, or product updates), you may be able to adjust the emails, text messages, push notifications, or other communications you receive from us in the VivaFoods mobile application, on our website, or through mechanisms or functionality available in the communication. For purposes of clarity, any text message you may receive from us, a Merchant, or a Contractor regarding an order is a transactional text message, not a promotional text message.
7. Intellectual Property Ownership
VivaFoods alone (and its licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Technology and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Technology or the Services, or any intellectual property rights owned by VivaFoods. VivaFoods names, VivaFoods logos, and the product names associated with the Technology and Services are trademarks of VivaFoods or third parties, and no right or license is granted to use them. You agree that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Technology or the Services.
8. Payment Terms
(a) Prices & Charges. You understand that:
(i) the prices for menu or other items displayed through the Services may differ from the prices offered or published by Merchants for the same menu or other items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu or other items are sold and may change at any time without notice;
(ii) VivaFoods has no obligation to itemize its costs, profits, or margins when publishing such prices; and
(iii) pricing may change at any time, in the discretion of VivaFoods or the Merchant (depending on which party sets the given price). You are liable for all transaction taxes (other than taxes based on VivaFoods’s income), including sales tax, use tax, goods and services tax, and other transaction taxes if applicable, on the Services provided under this Agreement (which, for the avoidance of doubt, includes any fees VivaFoods charges for VivaFoods subscriptions). If transaction taxes, including sales tax, use tax, goods and services tax, and other transaction taxes, are applicable, VivaFoods reserves the right to charge you additional amounts on account of such taxes. In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, VivaFoos reserves the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by VivaFoods and/or its payments processor, using the preferred payment method designated in your account. If your payment details change, you or your card provider may provide us with updated payment details. We may use these new details or details from other payment methods on file in order to help prevent any interruption to your use of the Services. This includes our right to charge any payment method on file if your initial form of preferred payment fails. It is your responsibility to keep your billing information up to date.
9. Cancellation And Suspension Of Use
The Consumer may not withdraw from or cancel an Order. VivaFoods is entitled to remove a Consumer from the VivaFoods Platform with immediate effect and/or refuse or cancel any Orders, if the Consumer causes any abuse or harm to the VivaFoods Platform, if VivaFoods has reasonable belief of fraudulent acts by the Consumer when using the Vivafoods Platform, or if the Consumer otherwise fails to comply with his/her obligations under these General Terms. The Consumer shall not use the VivaFoods Platform for money laundering purposes as well as any other criminal activity. If the Consumer violates this, VivaFoodswill permanently suspend the Consumer from using the VivaFoods Platform as well as will notify relevant law enforcement agencies.
10. Internet Delays
The Technology and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as otherwise required by applicable law, VivaFoods is not responsible for any delays, delivery failures, damage, loss, injury, or other economic damage resulting from such problems.
11. Indemnification
To the extent permitted by law, you agree to indemnify and hold harmless VivaFoods and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”) from and against any losses, claims, actions, costs, damages, penalties, fines, and expenses, including without limitation, legal and/or attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to, or resulting from (a) your User Content; (b) your misuse of the Technology or Services; (c) your breach of this Agreement or any representation, warranty, condition, or covenant in this Agreement; or (d) your violation of any applicable laws, rules, or regulations through or related to the use of the Technology or Services. In the event of any claim, allegation, suit, or proceeding alleging any matter potentially covered by this agreement, you agree to pay for the defense of the Indemnified Party, including reasonable costs and legal and/or attorneys’ fees incurred by the Indemnified Party. VivaFoods reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with VivaFoods in asserting any available defenses. This Section does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Technology or Services. You agree that the provisions of this Section will survive any termination of your account, this Agreement, or your access to the Technology and/or Services.
12. Termination
If you violate this Agreement, VivaFoods may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists.
In addition, at its sole discretion, VivaFoods may modify or discontinue the Technology or Services, or may modify, suspend, or terminate your access to the Technology or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Technology or the Services, VivaFoods reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal, or injunctive redress. Even after your right to use the Technology or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
13. General
(a) Currency: Unless otherwise indicated, all prices and other amounts displayed through the Services are in the currency of the jurisdiction where delivery or pickup occurs.
(b) Use Only Where Legally Allowed: You shall not access or use any portion of the Services if you are not legally allowed to do so where you are located.
(C) Subcontracting: VivaFoods may subcontract any of its obligations under this Agreement without your prior written consent.
(d) Variation of Our Websites or the Technology: We may from time to time vary, modify, or discontinue, temporarily or permanently, any or all of our websites or the Technology.
14. Choice of Law
Without giving effect to any principles that provide for the application of the law of any other jurisdiction, this Agreement is governed by the laws of Ghana
15. Severability
Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid,unenforceable or inconsistent with Ghanaian law, the invalidity,unenforceability or inconsistency of such provision shall not affect the validity or enforceability of the remaining provisions of this Agreement, which shall remain in full force and effect.
16. Entire Agreement
This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and VivaFoods relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.
17. Contact Information
VivaFoods welcomes your questions or comments regarding this Agreement. Please find our contact information below:
Ghana:
Viva Technologies Ltd.
18 Basko Lane
Abelemkpe, Accra
Customer Support
Telephone Number: +233 5000 05100