Nix86 reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement, effective with or without prior notice. Your continued use of the Website or the Service following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
Fees and Pricing: Use of the Service will be subject to the then-current fees in effect at time the order is placed. Current fees are shown in Appendix A.
Payment: Payment is expected at the time of acceptance of order. Payment may be made by either ACH (Automated Clearing House) transfer or Credit Card. If you select ACH as your primary payment method, a valid credit card is still required on file. If an ACH transaction is declined for any reason, your credit card on file will be charged immediately. Any account without current valid payment information, or with an outstanding balance, may not make additional purchases. An account that has had an issue regarding payment may be suspended at Nix86 sole discretion.
Preauthorization: Nix86 will preauthorize your credit card on file for each order for an amount equal to the total amount of the order, including estimated fees, plus 10%. Upon successful payment of the order by either ACH or Credit Card, Nix86 will release the preauthorization.
Returns/Refusals: If you wish to return an item from an order you must notify the driver at the time of delivery of that order. All returns of merchandise are subject to the return policy of the Vendors on the platform from which you ordered. All product must be in the original packaging and must be in a re-sellable format.
Substitutions: In the event that a product ordered is not available, Nix86 will substitute if you had previously indicated acceptable substitutions for that item in writing. If no prior instruction had been given, Nix will attempt to reach you with substitution options. If Nix86 is unable to reach you, or should you not accept the substitution, Nix86 will remove that item from the order. Substituted products may be more or less expensive than the product originally requested, and your instruction to us to substitute is your agreement to pay the substituted item prices.
Additions. Additions to orders must be paced by the stated cutoff time. If placed after the stated cutoff time, Nix86 will determine if they are able to fulfill the addition. If yes, a same day order fee will be applied. If not, your account manager will let you know and ask if you’d like the order delivered the following business day. All additions to orders should be done so through the Nix86 ordering app. Additions will not be accepted via phone, text, email, fax, etc.
Delivery Area. Upon setting up an account, you will be notified if we currently deliver to your area. Nix86 can, at its sole discretion, change the area in which it offers delivery service.
Delivery Window: Nix86 will provide you with delivery window information and updates via email or text message with estimated delivery windows.
Delivery: Nix86 will unload all products purchased to a location immediately inside the door to your establishment protected from weather elements and theft. You are responsible for the proper distribution of items to various locations including coolers and freezers.
Weight-based Items: Items sold by weight may end up costing more or less than the price listed on Nix86, depending on the exact weight and price of what’s chosen for you.
Nix86 Right to Refuse Order: Nix86 retains the sole right to refuse to accept or deliver any order from any User, at its sole discretion. In such cases User will be notified by Nix86 of such decision.
Transfer of Ownership: Nix86 is an online platform connecting buyers and merchants. All transactions made on the Nix86 platform are between the buyer and the merchant. Nix86 sales are online sales and are processed as online transactions. Nix86 does not take title for any items sold on the platform. Rather, title for each item you purchase will pass directly from the merchant to you, either in the merchant’s store at the point of sale if Nix86 arranges for delivery of the items, or at the delivery address if the merchant arranges for delivery of the items from the merchant’s warehouse or distribution center. Each merchant is solely responsible for calculating and informing Nix86 how much sales tax to collect on each order. Nix86 will collect the instructed amount from you on behalf of the merchant and will remit those funds to the merchant.
Software Platform License: The App is licensed, not sold, to You for use only under the terms of this Agreement. Nix86 reserves all rights not expressly granted to You. The App is to be used on devices that operate with Apple’s operating systems (“iOS” and “Mac OS”) and/or with Google’s operating system (“Android”) and/or with Microsoft’s operating system (“Windows”) and the aforementioned devices are referenced in this license as “Devices”.
a. Scope of License: Nix86 hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, non-perpetual license to use the App on any Devices that You own or control. This license does not allow You to use the App on any Devices that You do not own or control, and You may not distribute or make the App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the App. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App). Any attempt to do so is a violation of the rights of Nix86 and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Nix86 that replace and/or supplement the original App, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
b. Consent to Use of Data; Ownership of Intellectual Property: You agree that Nix86 may collect and use technical data and related information, including but not limited to technical information about Your device, system, software, and peripherals, that is gathered periodically to facilitate software updates, product support and other services to You (if any) related to the App. Nix86 may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You. You acknowledge that Nix86 owns all rights, including, but not limited to all intellectual property rights in the App including any related data, any derivative works, and any related know-how, notwithstanding their invention, creation, or use by You. Nix86 shall be entitled to use the same and to license the use of the same to others without restriction.
c. Termination: The Agreement is effective until terminated by You or Nix86. Your rights under this license will terminate automatically without notice from Nix86 if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the App, and destroy all copies, full or partial, of the App.
d. Services, Third Party Materials: The App may enable access to Nix86’s and third party services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and that You accept additional terms of service.
Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge and agree that Nix86 is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Nix86 does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials, web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You. Neither Nix86 nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or data displayed by any Services. Nevertheless, You agree to use the Services at Your sole risk and that Nix86 shall not be liable to You or to any third party for content that may be found to be offensive, indecent, or objectionable.
You agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Nix86 is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the Devices are not available in all languages or in all countries. Nix86 makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Nix86, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Nix86 be liable for the removal of or disabling of access to any such Services. Nix86 may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
Release: YOU AGREE THAT NEITHER NIX86 NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR ANY ERRORS, MISTAKES OR OMMISIONS RESULTING FROM OUR SERVICE. IN THE EVENT YOU HAVE A DISPUTE RESULTING FROM OUR SERVICE, YOU HEREBY RELEASE NIX86 AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, LIABILITIES, COSTS, INCLUDING WITHOUT LIMITATION ATTORNEY’S FEES, LOSS OR DAMAGE OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
APIs and Third Parties: Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Nix86 is not responsible for the operation of any Third Party Services nor the availability or operation of the Services.
Use of Material: Except as otherwise provided herein, all rights to all materials, content, layout, images, text, design (and any underlying software and computer codes) of this Website and all related apps are proprietary to Nix86 and its affiliates. Any copying, reproduction, posting on any other website, republication, downloading, uploading, encoding, modification, translation, public performance or display, distribution or transmission of any portion of this Website, or the making of any derivative works from this Website, is prohibited.
User Account: You are the sole authorized User of any account you create with Nix86. You are responsible for maintaining the confidentiality of any password or account number provided by you or Nix86 for accessing the Service. You are solely and fully responsible for all activities that occur under your password or account.
No Warranty: USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE WEBSITE AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. THE SERVICE IS 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. NIX86 MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE SERVICE OR THE CONTENT OF ANY WEBSITES LINKED TO THE NIX86 WEBSITE. NIX86 ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE NIX86 WEBSITE OR THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF NIX86’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN.
NIX86 DOES NOT WARRANT THAT THE WEBSITE WILL OPERATE ERROR-FREE OR THAT THE WEBSITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL GOODS. IF YOUR USE OF THE WEBSITE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NIX86 SHALL NOT BE RESPONSIBLE FOR THOSE COSTS. NIX86, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. NIX86 MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT. NIX86 AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
Limitation of Liability: YOU AGREE THAT NIX86 SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICE. YOU FURTHER AGREE THAT NIX86 SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT. IN NO EVENT SHALL NIX86’S TOTAL LIABILITY TO YOU FOR ANY LOSSES ARISING HEREUNDER EXCEED THE AMOUNTS PAID BY YOU TO NIX86 HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SHOULD A JURISDICTION BE ADVERSE TO A LIMITATION OR EXCLUSION OF WARRANTIES, SUCH PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND THE OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT.
Indemnity: You agree to defend, indemnify and hold harmless Nix86 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 your unauthorized use of the Website or from any breach by you of these Terms and Conditions, including without limitation any actual or alleged violation of any federal, state or local statute, ordinance, administrative order, rule or regulation. Nix86 shall provide notice to you promptly of any such claim, suit or proceeding and shall have the right to control the defense of such action, at your expense, in defending any such claim, suit or proceeding.
Termination: At its sole discretion, Nix86 may modify or discontinue the Website, or may modify, suspend or terminate your access to the Website or the Service, 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 Website or the Service, Nix86 reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Service is terminated, this Agreement will remain enforceable against you. You may terminate this Agreement at any time by ceasing all use of the Service. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
General: The laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, govern this Agreement and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. All disputes under this Agreement will be exclusively resolved by courts in the Commonwealth of Massachusetts, including the United States courts within Massachusetts, and the parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses. No independent contractor, agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
This Agreement constitutes the entire agreement between Nix86 and You in respect of the subject matter hereof and supersedes all prior and contemporaneous understandings, negotiations, commitments, oral or written communications, representations, undertakings and agreements.
APPENDIX A – PRICING SCHEDULE
The following fees apply for orders placed on the Nix86 platform and delivered by Nix86:
Restaurant Depot Fees
For orders placed on the Nix86 Platform with Restaurant Depot, the following fees will be charged for picking of orders at Restaurant Depot and delivery of order to User.
Nix86 Fee: $25
Late orders. Orders or additions to existing orders placed for delivery after the stated cutoff time, but still accepted by Nix86, shall be subject to an additional charge of $25.
Cancellation. Cancellation of an order on the day of delivery shall be subject to an additional charge of $50.
Limited access. Failure to provide access to delivery location during delivery window shall be subject to an additional charge of up to $100, depending on the extent of the limitation.
Long Distance Fees. Should Nix86 choose to accept orders outside of its normal delivery areas, additional fees will apply and User will be notified of such fees in advance.
Large Item Fee. Should Nix86 choose to accept orders for large items, additional fees will apply, and User will be notified of such fees in advance.
Non-Sufficient Funds Fee. If a payment is declined for any reason, an additional Non-Sufficient Funds charge of $25 will be due and charged.