Terms of Service

Made by Nacho Terms of Service

Nacho Eats Corp. (“Made by Nacho”) provides the Made by Nacho website (the “Platform”) and various related services (collectively, the “Services”) to you (“you” or “User”) subject to your compliance with all the terms, conditions, and notices contained or referenced herein (the “Terms of Service” or “Agreement"). In addition, when using particular services or materials on the Platform, you shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Service. All such guidelines or rules are hereby incorporated by reference into these Terms of Service.

BY CLICKING THE “I HAVE READ AND AGREE TO THE TERMS & CONDITIONS” CHECKBOX DISPLAYED AS PART OF THE REGISTRATION PROCESS, YOU AGREE TO THE FOLLOWING TERMS OF SERVICE GOVERNING YOUR USE OF THE MADE BY NACHO SERVICES AND MADE BY NACHO’S PRIVACY POLICY. By using the Made by Nacho Services, you also agree to be bound by the AskNicely Terms of Service.

Made by Nacho expressly reserves the right to change these Terms of Service from time to time without notice to you. You acknowledge and agree that it is your responsibility to review this site and these Terms of Service from time to time and to familiarize yourself with any modifications. Your continued use of this site after such modifications will constitute acknowledgement of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service.

Our store is hosted by Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.

User Registration

You agree to provide accurate, current and complete information about you or any entity on whose behalf you will access the service at the time of registering an account in order to access the Made by Nacho Platform (the “User Account”). You are solely responsible for maintaining the confidentiality of your User Account and password, and you are responsible for all activities that occur under your User Account by you or any authorized user of your User Account.

Grant of License

Made by Nacho grants User a limited, revocable, non-exclusive, non-transferable right and license to use the Platform solely for your own personal or internal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. Except as expressly licensed herein, Made by Nacho retains all right, title and interest in (including but not limited to all confidentiality, copyright, trade secret, patent and other intellectual property rights) to the Platform, and any and all upgrades, enhancements, modifications or derivative works of the Platform.

User will not, and will not allow any end user or third party under its direction and control, to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, technology or algorithms of the Platform by any means whatsoever, or replicate the functionality of the Platform for any purpose; (ii) license, share, lend, host, or otherwise transfer in any manner the Platform to or for the benefit of any third party; or, (iii) disclose any performance information or analysis from any source relating to the Platform. User will not authorize or permit any unaffiliated third party, including but not limited to direct competitors to Made by Nacho, to use the Platform without Made by Nacho’s prior written consent, which may be withheld at its discretion. All rights not expressly granted by Made by Nacho hereunder are reserved by Made by Nacho. These restrictions shall survive the termination of this Agreement.

Data Ownership

User Data

In order for Made by Nacho to provide Services, Made by Nacho may collect information about you (“User Data”). All User Data is the sole property of User and Made by Nacho has no ownership rights in any User Data. User Data includes, without limitation, all information provided by User to Made by Nacho and your use of Made by Nacho’s Platform. Made by Nacho shall adopt adequate archival procedures to store the User Data. In the event of any loss or corruption of User Data, Made by Nacho shall use commercially reasonable efforts to restore the lost or corrupted User Data from the latest backup of such User Data maintained by Made by Nacho in accordance with its archival procedures. Made by Nacho shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of User Data caused by any third party. MADE BY NACHO’S EFFORTS TO RESTORE LOST OR CORRUPTED USER DATA PURSUANT TO THIS SECTION SHALL CONSTITUTE MADE BY NACHO’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF USER DATA. Made by Nacho reserves the right to establish or modify its general practices and limits relating to storage of User Data.

Grant of License to MADE BY NACHO of User Data

You grant to Made by Nacho a limited, royalty-free license to use, reproduce and modify User Data solely as necessary for Made by Nacho to provide Services for you and to perform its other obligations to you. User’s license to Made by Nacho includes the right to collect User Data, either directly from User, third party services authorized by User, or through other means such as the use of redirects and pixels. Made by Nacho will not disclose User Data to any third party unless such disclosure is (i) approved by User, or (ii) is made by Made by Nacho in response to legal process, and provided that Made by Nacho has given User reasonable notice of, and a reasonable opportunity to contest, such legal process.

Grant of License to MADE BY NACHO of Aggregated Anonymous Data

So that Made by Nacho may improve and promote its offerings, you grant Made by Nacho a perpetual, unlimited, royalty-free license to aggregate User Data with other data, (and/or segregate portions of the User Data) so that it is non-personally identifiable with respect to User (“Aggregated Anonymous Data”). User agrees that Made by Nacho may create Aggregated Anonymous Data, and may use, reproduce, distribute, execute, display and commercially use the Aggregated Anonymous Data at its discretion. Made by Nacho may disclose Aggregated Anonymous Data to third parties, publish it through its website, blog, or by other means, and may transfer or sublicense its rights with respect to Aggregated Anonymous Data. User shall have no interest in such Aggregated Anonymous Data or any use thereof by Made by Nacho. This license shall survive the termination of this Agreement.

Your Obligations

Internet Access and Communication

To use the Services, you must have access to the Internet, either directly or through devices that access Web-based content. You must provide all equipment necessary to make (and maintain) such connection to the Internet. You are solely responsible for your equipment, connection, and all other networking and storage devices which you use to connect to the Services. You shall be solely responsible for all costs, fees, expenses, and taxes of any kind related to the foregoing. Made by Nacho shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services. You agree to provide Made by Nacho with your e-mail address, to promptly notify Made by Nacho of any changes to your e-mail address, and to accept e-mail or other electronic communications from Made by Nacho that are necessary to communicate with you about the Service. Made by Nacho may provide any and all notices, statements and other communications to you through e-mail, posting a notice in your User Account, or posting elsewhere on the Platform, and you expressly release and shall hold Made by Nacho harmless from any responsibility to communicate with you other than through e-mail or electronic means of the Made by Nacho’s choosing. You agree that as long as the Made by Nacho provides conspicuous notice in your User Account or elsewhere on the Platform, Made by Nacho shall have no liability for failure to notify you via e-mail, including for improper address, filtration, bounce-back, erroneous transmission or other e-mail or technical malfunction.

User Responsibility

You are solely responsible for all activity occurring under your User Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You are solely responsible for maintaining the confidentiality of your User Account and password and for restricting access to your computer(s), and you are responsible for all activities that occur under your User Account by you or any authorized user of your User Account. You shall promptly notify Made by Nacho of any suspected or alleged violation of this Agreement including any unauthorized use of any password or User Account or any other known or suspected breach of security. You shall cooperate with Made by Nacho with respect to: (a) investigation by Made by Nacho of any suspected or alleged violation of this Agreement and (b) any action by Made by Nacho to enforce this Agreement. Made by Nacho may suspend or terminate any User Account in the event that Made by Nacho reasonably determines that such User Account has been involved in a violation of this Agreement. You remain liable for the losses incurred by Made by Nacho or others due to any unauthorized use of your User Account or any User Account created by you, including but not limited to any charges associated with any unauthorized use.

User Comments and Marketing

You grant Made by Nacho a non-exclusive, perpetual, royalty free fully paid up limited right to use your name, trademarks, service marks and logos in the production of marketing materials promoting Made by Nacho and the Services, provided that such use is in accordance with your trademark and intellectual property use guidelines.

If, at our request, you send certain specific submissions (for example, product reviews) or without a request from us you send suggestions, proposals or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that Made by Nacho may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium an Comments that you forward to Made by Nacho. Made by Nacho shall be under no obligation to maintain any Comments in confidence, to pay compensation for any Comments or respond to any Comments.

Made by Nacho may, but has no obligation to, in its sole discretion, monitor, edit or remove content that is unlawful, hateful, threatening, obscene, defamatory or offensive or otherwise objectionable or any content that violates any law, regulation or rights of any third party including, without limitation, intellectual property rights or rights of publicity or privacy

User Generated Content

Nacho Eats Corp. (“Made by Nacho”) reaches out to social media users to seek their permission to feature user generated content on our various sites, social media channels and in promotional materials. You are reading these Terms of Use because Made by Nacho has requested your permission to use your content in the foregoing ways.

If you choose to allow our use of your content (“User Content”) by replying with the hashtag #NachoPhoto, you agree to these Terms of Use. If you are entering into these Terms of Use on behalf of an organization, you represent that you have the authority to do so.

Made by Nacho reserves the right to alter these Terms of Use without advance notice by posting a revised Terms of Use. Accordingly, you should review the Terms of Use each time you grant permission or authorization to feature your User Content.

USER CONTENT LICENSE

You shall at all times retain ownership of your User Content. You hereby grant to Made by Nacho and its related companies, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, and their respective retail partners, marketing or public relations agencies, and other affiliates (the “Licensed Parties”) a worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable, sublicensable right to use your User Content in any manner to be determined in the Licensed Parties’ sole discretion, including but not limited to on webpages and social media pages operated by the Licensed Parties, in promotional e-mails and advertisements, and in any and all other marketing, promotional and advertising initiatives, and in any media now or hereafter known (the “Made by Nacho Properties”). The Licensed Parties may use, display, reproduce, distribute, transmit, create derivative works from, combine with other materials, alter and/or edit your User Content in any manner in their sole discretion, with no obligation to you whatsoever.

You grant the Licensed Parties the right to use your username, real name, image, likeness, descriptions of you, location or other identifying information, including but not limited to your voice, in connection with any use of your User Content.

You hereby agree and represent and warrant that (i) you are solely responsible for your User Content, (ii) you own all rights in and to your User Content and/or have obtained appropriate rights and permissions from any and all other persons and/or entities who own, manage or otherwise claim any rights with respect to such User Content, (iii) you are not a minor, (iv) the Licensed Parties’ use of your User Content as described herein will not violate the rights, including but not limited to copyright, trademark, patent, trade secret, privacy, publicity, moral, proprietary or other rights, of any third party, or any law, rule or regulation, (v) the User Content is not libelous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, or offensive or otherwise unlawful, and (vi) you have not received any compensation of any king for any User Content, unless properly disclosed pursuant to applicable Federal Trade Commission guidelines.

You hereby release, discharge and agree to hold the Licensed Parties, and any person acting on their behalf, harmless from any liability related in any way to the Licensed Parties’ use of your User Content.

The User Content that you submit is deemed non-confidential and the Licensed Parties have no obligation to maintain the confidentiality of any information, in whatever form, contained in any submission, except pursuant to the Licensed Parties’ respective privacy policies. By accepting these Terms of Use, you are consenting to the Licensed Parties’ collection of any personal information you provide for the Licensed Parties’ use and disclosure in connection with the use of your User Content as described herein. If you do not agree to the collection, use and disclosure of your personal information in this way, please do not provide the Licensed Parties with personal information. Your personal information may be transferred to servers located outside the country in which you live or to third parties in other countries so that they may process personal information on the Licensed Parties’ behalf. By providing the Licensed Parties with personal information, you agree to the foregoing collection, use, disclosure, transfer and processing of your information in accordance with the terms of these Terms of Use, the Privacy Policy and applicable data protection laws and regulations.

The Licensed Parties reserve the right to remove any User Content from the Made by Nacho Properties. If you believe any content, including User Content, residing or displayed on the Made by Nacho Properties infringes any person’s or entity’s copyright rights, please report the alleged infringement(s) by completing the following Digital Millennium Copyright Notice of Alleged Infringement and delivering such Notice to Made by Nacho’s designated Copyright Agent. Upon receipt of such Notice, Made by Nacho will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Made by Nacho Properties.

Digital Millennium Copyright Act Notice of Alleged Infringement (“Notice”)

Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this Notice - you will provide a comprehensive list of the copyrighted works that you claim have been infringed.
Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the Made by Nacho Properties where such material may be found.
Provide your mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:

“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”

Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to Made by Nacho’s designated Copyright Agent.

c/o Nacho Eats Corp.

ADDITIONAL TERMS

These Terms of Use apply to the Made by Nacho Properties s and to your User Content unless otherwise provided. In addition, to the extent your User Content is displayed on any of the Made by Nacho Properties, you also will be subject to additional terms of use, agreements, guidelines or rules provided by Made by Nacho applicable to its services and to User Content, including but not limited to those set forth on the Made by Nacho website at https://www. https://madebynacho.com/policies/terms-of-service, and you hereby agree to be bound by such additional terms of use or service, agreements, guidelines, instructions or rules provided or posted by Made by Nacho (the “Made by Nacho Terms”).

You certify that you are at least 18 years of age.

INTELLECTUAL PROPERTY RIGHTS

The Made by Nacho Properties may be protected by copyright, trademark and other intellectual property laws. You acknowledge and agree that you do not acquire any ownership or other rights in proprietary information and materials of Made by Nacho by authorizing use of your User Content or otherwise using or accessing the Made by Nacho Properties.

MISCELLANEOUS

These Terms of Use are personal to you and may not be assigned or transferred by you for any reason whatsoever without Made by Nacho’s prior written consent; and any action or conduct in violation of the foregoing shall be void and without effect.

You agree that if Made by Nacho does not exercise or enforce any legal right or remedy which is contained in these Terms of Use (or which Made by Nacho has the benefit of under any applicable law), this will not be taken to be a formal waiver of Made by Nacho’s rights and that those rights or remedies will still be available to Made by Nacho.

If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms of Use are invalid, then that provision will be removed without affecting the rest of the Terms of Use. The remaining provisions of these Terms of Use will continue to be valid and enforceable.

Last updated: October 25, 2021

Third Party Sites

Made by Nacho’s Service may provide links to third party sites or resources. Made by Nacho has no control over such third party sites or resources and you acknowledge and agree that Made by Nacho is not responsible for the availability of such external resources and does not endorse and is not liable for any content, advertising, products or other materials available from or on such sites or resources. Any transactions or activity between you and any third party site or resource is solely between you and the applicable third party, and any terms, conditions, warranties or representations associated with such activity shall be between you and them. You recognize that certain third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify your Agreement here with Made by Nacho. If you are referred to a third party site as an affiliate of Made by Nacho, then you agree to permit such third party site to share details of your transactions with them with Made by Nacho.

Representations and Warranties

User represents and warrants that (i) any content or information provided by User will not contain any information or materials that is unlawful, hateful, threatening, obscene, defamatory or offensive, and (ii) any content or information provided by User will not violate any law, regulation or rights of any third party including, without limitation, intellectual property rights or rights of publicity or privacy.

Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE ACCURACY OF ANY ADVICE, GUIDANCE OR VALUATION OF USER’S BUSINESS. MADE BY NACHO DOES NOT WARRANT THE RESULTS OF THE SERVICES, THAT THE SERVICES WILL MEET USER’S BUSINESS GOALS OR OTHER REQUIREMENTS OR EXPECTATIONS (OR, IF ACHIEVED, THAT SUCH RESULTS WILL BE SUSTAINABLE), THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, OR THAT ANY ERROR IN THE SERVICES WILL BE CORRECTED. USER ACKNOWLEDGES THAT THE SERVICES MAY BE INACCESSIBLE, UNAVAILABLE OR INOPERABLE FROM TIME TO TIME.

Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MADE BY NACHO SHALL NOT BE LIABLE TO USER, OR ANY THIRD PARTY, FOR (I) ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION OR BUSINESS, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS. MADE BY NACHO SHALL NOT BE LIABLE TO ANY PARTY FOR ANY AMOUNT IN EXCESS OF THE AMOUNT IN AGGREGATE PAID TO MADE BY NACHO BY USER HEREUNDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

Indemnification

You agree to indemnify, defend and hold Made by Nacho, and its respective officers, directors, shareholders, affiliates, employees, agents, representatives and attorneys harmless from any liability, loss, claim and expenses (including reasonable attorneys’ fees) related to your violation of this Agreement or use of the Services.

Miscellaneous

Entire Agreement

This Agreement contains the entire understanding and agreement of the parties, incorporating herein all previous negotiations and agreements, superseding all prior or contemporaneous proposals, communications and understandings, whether written and oral.

Waiver

The failure of Made by Nacho to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Any waiver of this Agreement by Made by Nacho must be in writing and signed by an authorized representative of Made by Nacho.

Assignment

Neither party may assign this Agreement to a third party without the prior express written consent of the other party, which consent shall not be unreasonably delayed or withheld; provided however, Made by Nacho may assign this Agreement to (i) an affiliate of such party, or (ii) any acquirer of all or of substantially all of such party’s equity securities, assets or business related to the subject matter of this Agreement.

SEVERABILITY

If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.

Compliance with Law

Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under the Agreement.

Independent Contractors

Nothing in the Agreement, or in the business or dealings between the parties, shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractors.

Jurisdiction and Venue; Attorney’s Fees

This Agreement shall be governed by the laws of the State of California without respect to choice of law rules, and the parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in New York County, New York. The prevailing party in any dispute shall be responsible for the other’s party’s reasonable attorney’s fees.

Survival

In addition to any provisions specified herein, the complete sections entitled “Marketing,” “Representations and Warranties,” “Limitation of Liability,” and “Indemnification” and the sub-section entitled “User Responsibility” shall survive the termination of this Agreement.

TERMINATION

Made by Nacho may terminate this Agreement at any time, with or without notice, for any reason. Upon expiration or termination of this Agreement, Made by Nacho shall have no obligation to deliver any copy of the User Data to you and may delete such User Data at any time.