Terms of Use

Effective: July 1, 2022

PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS ("AGREEMENT") CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND NAUGHTY GULL LLC, A NEW YORK LIMITED LIABILITY COMPANY dba The Clam ("Naughty Gull," "WE," "US," "OUR" OR THE "COMPANY"). SECTION 11 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 11 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 11 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

1. Acceptance of This Agreement

The Company provides an online food ordering platform, using web-based and mobile app technology that allows You and other consumers to order food, drinks, desserts, and other items from partnered restaurants and/or other businesses ("Partners"). The Company's software permits consumers to place orders for food and/or other goods from various restaurants and businesses. Once such orders are made, the Company's software facilitates the end to end completion of the delivery to the consumer. If you access the website located at www.theclamnyc.com or use Naughty Gull's mobile application, install or use any other software supplied by Naughty Gull, or access any information, function, or service available or enabled by Naughty Gull (each, a "Service" and collectively, the "Services"), or complete the Naughty Gull account registration process, you, your heirs, assigns, and successors (collectively, "you" or "your") hereby represent and warrant that: (a) you have read, understand, and agree to be bound by this Agreement; (b) you are of legal age in the jurisdiction in which you reside to form a binding contract with Naughty Gull (the "Minimum Age"); and (c) you have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf you have created an account and to bind such organization to the Agreement. The terms "User" and "Users" refer to all individuals and other persons who access or use the Services, including, without limitation, any organizations that register accounts or otherwise access or use the Services through their respective representatives. Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use Naughty Gull's Services.

2. Modifications

Subject to Section 11(h) of this Agreement, Naughty Gull reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time, effective upon posting of an updated version of this Agreement through the Services. You should regularly review this Agreement as your continued use of the Services after any such changes constitutes your agreement to such changes.

3. Additional Terms and Policies

By using the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Naughty Gull's Privacy Policy (needs to be drafted) which is incorporated in this Agreement by reference. Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.

4. Rules and Prohibitions

By using the Services, you agree that:

a)           You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other Users, Naughty Gull employees, or our community.

b)           You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.

(c)          You will only access the Services using means explicitly authorized by Naughty Gull.

(d)         You will not 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 the Services to cause nuisance, annoyance or inconvenience.

(f)     You will not 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 Naughty Gull has given you prior permission to do so in writing.

(g)       You will not copy or distribute the software or any content displayed through the Services, including Merchants' menu content and reviews, for republication in any format or media.

h)             You will not compile, directly or indirectly, 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 or any identification credentials we provide you which allows access to the Services.

(k)         You will use the Software and Services only for your own use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.

(l)        You will not use the Services in any way that could damage, disable, overburden or impair any Naughty Gull server, or the networks connected to any Naughty Gull server.

m)            You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any Naughty Gull 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 Naughty Gull may use to prevent or restrict access to the Services or use of the Services or the content therein.

o)             You will not deep-link to the Naughty Gull website or access the Naughty Gull website 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 the Naughty Gull website or any content on the Naughty Gull website.

p)             You will not conduct any systematic retrieval of data or other content from the Services.

q)             You will not try to harm other Users, Naughty Gull, or the Services in any way whatsoever.

r)              You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights you uncover in your use of the Services.

(s)         You will not 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.

(t) You will not attempt to undertake any of the foregoing.

5. User Account

You may be required to register for an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete. You are the sole authorized user of any account you create through the Services.

You are solely and fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your User status, and you may not assign or otherwise transfer your User account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Naughty Gull immediately. Naughty Gull will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Naughty Gull or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Naughty Gull has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Naughty Gull has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by Naughty Gull, or if you have been previously banned from use of the Services.

6. User Content

a)  User Content.

Naughty Gull may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews (collectively, "User Content"). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You hereby grant Naughty Gull a perpetual, irrevocable, transferable, fully paid, royalty-free, non­ exclusive, worldwide, fully sub-licensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with Naughty Gull's business and in all forms now known or hereafter invented ("Uses"), without notification to and/or approval by you. You further grant Naughty Gull a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you. You agree that this license includes the right for other Users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. In the interest of clarity, the license granted to Naughty Gull herein shall survive termination of the Services or your account. Naughty Gull reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or we consider to be objectionable for any reason. You agree that Naughty Gull may monitor and/or delete your User Content (but does not assume the obligation) for any reason in Naughty Gull's sole discretion. Naughty Gull may also access, read, preserve, and disclose any information as Naughty Gull reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent or otherwise address fraud, security or technical   issues, (iv) respond to User support requests, or (v) protect the rights, property or safety of Naughty Gull, its users and the public.

(b)   Feedback.

You agree that any submission of any ideas, suggestions, and/or proposals to Naughty Gull through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that Naughty Gull has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to Naughty Gull a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sub-licensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.

(c)    Geo-Location (GPS, Wi-Fi, or user-entered).

With your permission, we use and analyze your location information we collect from you and your device to (1) respond to your requests to find nearby restaurants; (2) confirm the restaurant location for your mobile orders; (3) offer promotions; and/or (4) manage online delivery and pickup.

7. Communications with Naughty Gull

By creating a Naughty Gull account, you electronically agree to accept and receive communications from Naughty Gull, Contractors, or third parties providing services to Naughty Gull including via email, text message, calls, and push notifications to the cellular telephone number you provided to Naughty Gull. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver pre-recorded messages sent by or on behalf of Naughty Gull, its affiliated companies and/or Contractor, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing the Settings in your account.  You may also opt-out of receiving text message from Naughty Gull by replying "STOP" from the mobile device receiving the messages.

8. E-SIGN Disclosure

By creating a Naughty Gull account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Naughty Gull at info@theclamnyc.com. To view and retain a copy of this disclosure, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email Naughty Gull at info@theclamnyc.com with contact information and the address for delivery.

9. Intellectual Property Ownership

Naughty Gull alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Services, or any intellectual property rights owned by Naughty Gull. Naughty Gull name, Naughty Gull logo, and the product names associated with the Software and Services are trademarks of Naughty Gull 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 Software or the Services.

10. Payment Terms

a) Prices.  You understand that:

1. the prices for menu items displayed through the Services may differ from the prices offered or published by Merchants for the same menu items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the menu items are sold;
2. Naughty Gull has no obligation to itemize its costs, profits or margins when publishing such prices; and
3. Naughty Gull reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on Naughty Gull's income). Payment will be processed by Naughty Gull, using the preferred payment method designated in your account.

b) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. Naughty Gull has no obligation to provide refunds or credits, but may grant them, in each case in Naughty Gull's sole discretion.

c) Promotional Offers and Credits. Naughty Gull, at its sole discretion, may make promotional offers with different features and different rates to any User. These promotional offers are subject to the terms of this Agreement and may be valid only for certain Users as indicated in the offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Naughty Gull; (iii) are subject to the specific terms that Naughty Gull establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer or in Naughty Gull's Terms and Conditions for Promotional Offers and Credits. Naughty Gull reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Naughty Gull determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal or in violation of the applicable promotion terms or this Agreement. Naughty Gull reserves the right to modify or cancel an offer at any time.

d) Fees for Services. Naughty Gull may change the fees for our Services as we deem necessary or appropriate for our business, including but not limited to Delivery Fees, Service Fees, Small Order Fees, and Surge Fees.

11. Dispute Resolution

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 11 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE "ARBITRATION AGREEMENT".

a) Scope of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Services as a consumer of our Services, to any advertising or marketing communications regarding the Company or the Services, to any products or services sold or distributed through the Services that you received as a consumer of our Services, or to any aspect of your relationship or transactions with Company as a consumer of our Services will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. NO CASES HAVE BEEN FILED AGAINST THE COMPANY AS OF THE DATE HEREOF, HOWEVER, ANY CASES THAT MAY BE FILED IN THE FUTURE THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, BY ACCEPTING THIS ARBITRATION AGREEMENT, YOU ELECT NOT TO PARTICIPATE IN SUCH CASES.  IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

(b) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, John W. Dunne, Lynn Gartner Dunne & Frigenti, LLP, 330 Old Country Road, Suite 103, Mineola, New York  11501, as well as to our address at Naughty Gull, 420 Hudson St, New York, NY 10014. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys' fees and interest, shall be subject to JAMS's most current version of the Streamlined Arbitration Rules and procedures available at http://www.Jamsadr.com/rules-streamlined­arbitration/; all other claims shall be subject to JAMS's most current version of the Comprehensive Arbitration Rules and Procedures, available at http://wwwJamsadr.com/rules-comprehensive­arbitration/. JAMS's rules are also available at wwwJamsadr.com (under the Rules/Clauses tab). Payment of all filing, administration, and arbitration fees will be governed by JAMS's rules. If the arbitrator finds that you cannot afford to pay JAMS's filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, the Company may pay them for you. In addition, the Company will reimburse all such JAMS's filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.

(c) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator's decision is final and binding on you and the Company.

(d)   Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in section 11(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

(e)        Waiver of Class or Consolidated Actions. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute.  Instead, all such claims and disputes will then be resolved in a court as set forth in this Agreement.

f) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor the Company can force the other to arbitrate as a result of this Agreement. To opt out, you must notify the Company in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Naughty Gull username (if any), the email address you used to set up your Naughty Gull account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: info@theclamnyc.com.  If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND THE COMPANY RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION, ANY INDEPENDENT CONTRACTOR AGREEMENT GOVERNING YOUR SERVICES AS A CONTRACTOR. FOR THE AVOIDANCE OF DOUBT, IF YOU ARE A CONTRACTOR, OPTING-OUT OF THE ARBITRATION AGREEMENT SET FORTH IN THIS SECTION 11 HAS NO AFFECT ON YOUR AGREEMENT TO ARBITRATE DISPUTES COVERED BY YOUR INDEPENDENT CONTRACTOR AGREEMENT WITH THE COMPANY.

g) Survival. This Arbitration Agreement will survive any termination of your relationship with the Company.

h) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

12. Third-Party Interactions

a) Third-Party Websites, Applications and Advertisements.  The Services may contain links to third-party websites (“Third-Party Websites") and applications ("Third-Party Applications") and advertisements ("Third-Party Advertisements") (collectively, "Third­ Party Websites & Advertisements"). When you click on a link to a Third­ Party Website, Third-Party Application or Third-Party Advertisement, Naughty Gull will not warn you that you have left Naughty Gull's Website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under the control of Naughty Gull.  Naughty Gull is not responsible for any Third-Party Websites, Third­ Party Applications or any Third-Party Advertisements. Naughty Gull does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You use all links in Third­Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

b) App Stores.  You acknowledge and agree that the availability of the Application is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores ("App Store"). You acknowledge and agree that this Agreement is between you and Naughty Gull and not with the App Store. Naughty Gull, not the App Store, is solely responsible for the Software and the Services, including the Application and the Services, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or the Services.   You agree to comply with, and your license to use the application is conditioned upon, your compliance with all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using the Application. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.

13. Social Media Guidelines

Naughty Gull maintains certain social media pages for the benefit of the Naughty Gull community, fans, customers and inquirers. We want to build a community where everyone can engage in meaningful dialogue with one another. Our goal is to post relevant, interesting content and we welcome your comments and suggestions. Creating a welcoming community is important to us. We want all members of Naughty Gull pages and feeds to be able to express their opinions freely and feel comfortable entering into informed debate and discussion. If you post to this page or feed, or otherwise respond or comment on a post, you are agreeing to abide by these Social Media Community Guidelines. There are certain topics we won't be able or willing to talk about here, and some of your discussions may need to be redirected or curtailed for the same reason. By way of example, we ask that you refrain from posting comments that: (i) contain comments, links, content, images or videos that are obscene, sexuality explicit, profane, vulgar, or hateful in nature and/or promote racism, sexism, hatred or harm against any person, organization or company; (ii) contain comments that threaten any person, organization or company; (iii) contain comments that defame, harass, or abuse any person; (iv) contain successive off-topic, posts by a single user ( v) contain or constitute spam; ( vi) contain comments, links, images or video that encourage illegal activity; (vii) contain any materials that infringe upon the rights of any third party; (viii)  contain confidential or proprietary information of any person, organization or company; (ix) contain false or misleading comments or claims about Naughty Gull or its competitors; (x) contain software viruses, Trojan horses, worms, time bombs, or any other computer code or files or disabling mechanisms that are designed to disrupt, damage, or limit the functioning of any software, hardware, telecommunications equipment, or that interfere with our operation. Community members are responsible for their comments or posts. The opinions, statements, and viewpoints expressed by community members do not necessarily reflect the opinions of Naughty Gull. As such, Naughty Gull does not endorse and is not responsible for any user comments. By posting, you are promising us that your post complies with these guidelines and doesn't contain any of the restricted content listed above. Please note, however, that we may remove any post that we believe does not comply.

DISCLAIMER - THIRD PARTY CONTENT

Naughty Gull's social media page(s) or feed(s) will occasionally link to user or third-party content to share the most up-to-date information with the community. Following these links may take you to materials or content that does not necessarily reflect the views of Naughty Gull and was not originated by Naughty Gull. Content that makes up these sites and articles is not the responsibility of Naughty Gull and does not necessarily represent the opinions, beliefs or endorsement of the company. Naughty Gull disclaims all liability concerning the accuracy and reliability of any such content.

YOUR SUBMISSIONS TO NAUGHTY GULL SOCIAL MEDIA PAGES

By posting any content to an Naughty Gull social media page(s) or feed(s) including, without limitation, any photographs, comments, stories or other submissions (collectively, "Submissions") you give Naughty Gull,  free of cost, a non-exclusive license to use such Submissions in whole or in part, on a worldwide basis, and to incorporate it into any other works, in any  form, media or technology now known or later developed including without limitation, on any of Naughty Gull's social media page(s) or feed(s) for any legal use including without limitation, for promotional and marketing of Naughty Gull, and its products and/or services. By posting a Submission, you represent and warrant that you have all appropriate rights to post such Submission and that Naughty Gull's use thereof will not violate the rights of any third party, including, but not limited to, copyright, trademark rights, and rights of privacy or publicity.

DIGITAL MILLENNIUM COPYRIGHT ACT ("DMCA") NOTICE

Materials may be made available through Naughty Gull's page(s) or (s) by third parties not within Naughty Gull's control. Naughty Gull is under no obligation to, and does not, scan content used in connection with its page(s) or feed(s) for the inclusion of illegal or impermissible content.  However, Naughty Gull respects the copyright interests of others. It is Naughty Gull's policy not to permit materials known by it to infringe another party's copyright to remain on its page(s) or feed(s).If you believe any materials on Naughty Gull's social page(s) or feed(s) infringe a copyright, you should feel free to reach out to the platform, and to provide Naughty Gull with written notice that at a minimum contains: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of the location on the social page(s) or feed(s) of the material that you claim is infringing; your address, telephone number and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for the Naughty Gull's Copyright Agent for notice of claims of copyright infringement is as follows:  Naughty Gull, info@theclamnyc.com.  It is Naughty Gull’s policy to terminate relationships regarding content with third parties who repeatedly infringe the copyrights of others.

NO IDEAS ACCEPTED

Naughty Gull does not accept any unsolicited ideas from outside the company including without limitation suggestions about advertising, promotion or merchandising of our products, additions to our product lines, services, or changes in methods of doing business. We may already be working on or may in the future work on a similar idea. This policy eliminates concerns about ownership of such ideas. If, notwithstanding this policy, you submit an unsolicited idea to a Naughty Gull social media page or feed, you understand and acknowledge that such idea is not submitted in confidence and Naughty Gull assumes no obligation, expressed or implied, by considering it.

SERVICE CONCERNS CONTACT INFORMATION

Please note that Naughty Gull social media page(s) or feed(s) are not intended as a place for receiving consumer complaints. If you have any questions about any Naughty Gull product or service, you can reach us at info@theclamnyc.com. 

14. Transactions Involving Alcohol

You may have the option to request delivery of alcohol products in some locations. If you receive your delivery in the United States, you agree that you will only order alcohol products if you are of legal age in the relevant jurisdiction or older.  If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction.  You also agree that upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the driver delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. The driver reserves the right to refuse delivery if you are not 21 years of older, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or you are visibly intoxicated. If the driver is unable to complete the delivery of alcohol products for one or more of these reasons, you are subject to a non-refundable $20 re-stocking fee.

15. Indemnification

You agree to indemnify and hold harmless Naughty Gull 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 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 Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys' fees incurred by the Indemnified Party. Naughty Gull 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 Naughty Gull in asserting any available defenses. This provision 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 Software or Services. You agree that the provisions in this section will survive any termination of your account, this Agreement or your access to the Software and/or Services.

16. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SOFTWARE AND SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NAUGHTY GULL MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS. NAUGHTY GULL DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NAUGHTY GULL SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.

17. Internet Delays

The Software and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in Naughty Gull's privacy policy or as otherwise required by applicable law, Naughty Gull is not responsible for any delays, delivery failures, or damage, loss or injury resulting from such problems.

18. Breach And Limitation of Liability

a) General.   You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost. You understand and agree to the limitations on remedies and liabilities set forth in this Section 18 to keep the Software and Services simple and efficient, and costs low, for all users.

(b)        Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW NAUGHTY GULL'S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU TO NAUGHTY GULL IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS CAP ON LIABILITY SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.

(c)        Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, NAUGHTY GULL SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE). THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE ENTIRE DISCLAIMER OF DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE, OR FOR ANY INJURY CAUSED BY NAUGHTY GULL'S FRAUD OR FRAUDULENT MISREPRESENTATION, SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.

19. Exclusive Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Naughty Gull agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state supreme court located in the County of New York, State of New York.

20. Termination 

If you violate this Agreement, Naughty Gull may respond based upon 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, Naughty Gull may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software 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 Software or the Service, Naughty Gull reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Software 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.

21. Procedure for Making Claims of Copyright Infringement

It is Naughty Gull's policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Naughty Gull by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

(b) a description of the copyrighted work that you claim has been infringed;

(c)  a description of the location on the Services of the material that you claim is infringing;

(d)  your address, telephone number and e-mail address;

(e)  a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and

(f)  a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Contact information for Naughty Gull's Copyright Agent for notice of claims of copyright infringement is as follows: info@theclamnyc.com.

22. General

a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Naughty Gull or any third-party provider as a result of this Agreement or use of the Software or Services.

b) Choice of Law. This Agreement is governed by the laws of the State of New York without giving effect to any principles that provide for the application of the law of any other jurisdiction.

c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.

(d)       Accessing and Downloading the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"):

(e)  

(1) You acknowledge and agree that (i) the Agreement is concluded between you and Naughty Gull only, and not Apple, and (ii) Naughty Gull, not Apple, is solely responsible for the App Store Sourced Application and the content thereof.   Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

(2) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

(3)  In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App Store Sourced Application to you and to the fullest extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Naughty Gull and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Naughty Gull.

(4)  You and Naughty Gull acknowledge that, as between Naughty Gull and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

5)   You and Naughty Gull acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between Naughty Gull and Apple, Naughty Gull, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.

6)  You and Naughty Gull acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.

7)  Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

f) Notice. Where Naughty Gull requires that you provide an e-mail address, you are responsible for providing Naughty Gull with your most current e-mail address. In the event that the last e-mail address you provided to Naughty Gull is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Naughty Gull's dispatch of the e-mail containing such notice will nonetheless constitute effective notice.

(g)          Electronic Communications. For contractual purposes, you:

1. consent to receive communications from Naughty Gull in an electronic form; and 

  2.   agree that all terms and conditions, agreements, notices, disclosures, and other communications that Naughty Gull provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.

(h) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Naughty Gull without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party's successors and permitted assigns.

(i)  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 Naughty Gull relating to your work as an employee or independent contractor, including, without limitation, any Independent Contractor Agreement governing your efforts as a Contractor.