This Restaurant Agreement (the "Agreement") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (the "Restaurant"), and Eats365 or its affiliates (collectively, "Eats365"), regarding the Restaurant's use of software programs, applications, website, devices and technologies developed by Eats365 (collectively, "Products" or "Eats365 Products"), and the Restaurant's inclusion in the applicable services (the "Eats365 Market Place") to the end-user customers (the "Customer") by Eats365 via its Products and such other media or media channels (the "Eats365 Services").
1. Restaurant Boarding
1.1 Registration. The Restaurant agrees to provide, and thereafter maintain and promptly update for so long as this Restaurant Agreement is effective, the true, accurate, current and complete information regarding the Restaurant as is requested during the Restaurant's registration process (the "Registration Process"). The Restaurant will provide Eats365 with the Restaurant's current menu, and any updates, changes, or modifications thereto (the "Restaurant Menu"), in such format as is requested by Eats365 (collectively, "Marketing Materials") for Eats365' inclusion in the Eats365 Market Place and Eats365 Services or for any marketing or advertising activities undertaken by Eats365, in its sole and absolute discretion (the "Eats365 Marketing Activities").
1.2 Use of Restaurant Trademark and Copyrights. The Restaurant hereby grants to Eats365 a non-exclusive, transferable, royalty-free, fully-paid, worldwide license, to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), and distribute such Marketing Materials, including any trademarks, trade names, service marks, logos, telephone numbers, and addresses therein, for any purpose, including marketing, commercial, advertising, promotional activities or otherwise, and with a right to sublicense, in connection with the Eats365 Market Place, the Eats365 Services, or the Eats365 Marketing Activities; and, in connection with Eats365' exercise of the license rights granted by the Restaurant, Eats365 may prepare derivative works of, or incorporate into other works, all or any portion of the Marketing Materials. The license rights granted hereby will apply to any form, media, or technology now known or hereafter developed. Eats365 does not assert any ownership over the Marketing Materials; rather, as between Eats365 and the Restaurant, and subject to the rights granted to Eats365 herein, the Restaurant shall be the owner of its Marketing Materials and the intellectual property rights associated thereto.
2. Eats365 Products
2.1 Restaurant Systems. Eats365 offers a wide variety of Products as Software-as-a-Service (SaaS) to Restaurants. The Products are an integral part of Eats365 Services, and provide full interoperability with the Eats365 Market Place as end-to-end solution. These Products, their features and/or functions may be modified, changed, replaced, added, and/or removed (the "Changes") from the Products lineup for their continual improvements. Such Changes shall be made at the sole and absolute discretion of Eats365, and without notice to the Restaurant.
2.2 Subscriptions Restaurant can subscribe to the Eats365 Products prepaid either on a monthly or annual basis. The Products subscription grants Restaurant a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate licensed proprietary software (the "Software") which includes application software, its hosted services and account on the Eats365 network.
2.3 Fees. Eats365 currently offers a 14 days free trial on its Products, where applicable, upon which, the Restaurant must pay in full the subscription fee, set out in the order form, or otherwise agreed by written agreement, to continue. To avoid interruption of service, Restaurant agrees to pay the subscription fee in a timely manner, and before the expiration of such Product license(s). Failure to comply with or otherwise pay fees due may subject to the cancelation of service(s) and the termination of Restaurant account.
2.4 Integrated Credit Card Processing. For the convenience of the Restaurant's operation, Eats365 provides integration with third party credit card processing provider or acquirer, however, Eats365 makes no claims or warranties to the fitness of such integration and/or any third party software. The Restaurant will be required to sign up and be bound by the Terms and Conditions set forth by the third party provider or acquirer to use the integration.
3. Eats365 Services
3.1 Market Place Inclusion. Upon approval of the Restaurant Menu, Eats365 may perform a variety of marketing activities to promote the Restaurant and the its menu, many of which are described on the Eats365 Market Place; provided, however, that all such marketing activities will be determined in Eats365's sole and absolute discretion and the Eats365 Market Place may be changed, without notice and from time to time, to reflect any such changes.
3.2 Customer Order and Confirmation. The Restaurant acknowledges and agrees that the Customers of the Eats365 Services may place orders with the Restaurant, through the Eats365 Market Place or other media or media as may be included within the Eats365 Services, for the food and beverages, and dine-in, pick-up and/or delivery services in connection therewith, as is set forth on the Restaurant Menu (the "Customer Orders"). Upon placement of such a Customer Order, Eats365 will send electronic notification to the Restaurant via the Eats365 POS App or other means provided to and agreed by the Restaurant, upon the Restaurant's acceptance of the Customer Order, the order is then confirmed.
3.3 Delivery of Confirmed Order. The Restaurant shall use best effort to deliver the confirmed order to the Customer without delay. Restaurant shall keep proper records as proof of order delivery, where applicable, and deliver to Eats365 such records upon request by Eats365.
3.4 Customer Payment; Commission; and Payment Processing Fee. Eats365 Marketplace allows a Customer to pay for a Customer Order via credit card through Stripe® or the then-current payment provider, or through payment directly to the Restaurant. If the Customer Order is paid via credit card, the full purchase price for such Customer Order, including sales tax, value added tax or VAT (collectively, "VAT") and any other applicable taxes, shall be processed and received by Eats365 and, at least once per calendar month, Eats365 will deliver to the Restaurant the aggregate purchase price of all Customer Orders applicable to the Restaurant that were so processed by Eats365, and less Eats365' commission percentage (the "Commission Percentage") and the applicable credit card merchant payment processing, via direct bank deposit or check, as determined by Eats365. If the Customer Order is to be paid directly to the Restaurant, then, at least once per calendar month, Eats365 may invoice the Restaurant for the Commission Percentage due on applicable Customer Orders, and the Restaurant shall pay such invoice within fifteen days of receipt; payment shall be made within 15 days of receipt of the applicable invoice and via either credit card or check at Eats365' sole and absolute discretion. Late payments will bear interest at a rate equal to the lesser of one percent (1%) per month (or portion thereof) or the maximum interest rate otherwise permitted by applicable law.
3.5 Taxes and VAT. Notwithstanding anything to the contrary herein, the Restaurant is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Customer Orders and the Restaurant's use of the Eats365 Products, Eats365 Market Place and Eats365 Services. Eats365 may charge and collect VAT from Customers as an agent on behalf of the Restaurant in accordance with instructions provided by the Restaurant or applicable law; and, in which case, Eats365 will collect such VAT solely as an agent on behalf of the Restaurant and shall pay such amount collected to the Restaurant (or as may be otherwise required by applicable law). The Restaurant shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities. VAT shall include, any sales, use, privilege, gross receipts, restaurant, excise, or other tax due in relation to the sale of food and beverages, including pick-up and delivery services where applicable, by the Restaurant.
3.6 Disputes between Restaurant and Customer. In the event of a complaint or dispute originating from a Customer, the Restaurant understands and agrees that Eats365 is under no obligation to deal with this complaint or dispute and the Restaurant, to the fullest extent permitted by law, hereby releases Eats365 and its officers, directors and employees, service providers, partners, affiliates, agents, and successors from, and agrees to indemnify each of the foregoing for any losses incurred in connection with, any and all claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to Customer disputes.
3.7 Restaurant Representations; Warrants; and Covenants. The Restaurant hereby represents, warrants, and covenants that: (a) the prices charged to Customers through the Eats365 Services will not be higher than those charged to any customers that place orders directly with the Restaurant; (b) it will comply, and prepare, sell, market, and provide all foods in strict compliance, with all applicable rules, regulations, standards, and law of all governmental authorities where business is conducted, pertaining to food preparation, sale, marketing, safety, and as otherwise applicable to the Restaurant's operation of its business; (c) it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law or by Eats365' then-current policies; (d) it bears all risks to persons and property arising from its (or its employees' or service providers') contact therewith, and waives, and agrees to indemnify Eats365 for, any and all claims relating thereto against Eats365; (e) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of the Restaurant's Marketing Materials pursuant to the license rights granted to Eats365 by this Agreement does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party; and the Restaurant's Marketing Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.
3.8 Insurance. The Restaurant shall at all times maintain comprehensive public liability insurance (which may be under a blanket policy), issued by a licensed insurer, insuring the Restaurant against any liability arising out the lease, use, occupancy of maintenance of its premises and all areas appurtenant thereto and the operation of the business, which will have a limit of not less than $2,000,000 combined single limit for injury to, or death of, one or more persons per occurrence, and for damage to tangible property per occurrence.
4. INTELLECTUAL PROPERTY
Eats365, its affiliates, and their licensor(s) retain all right, title, and interest in and to all intellectual property rights associated with and/or utilized in or by the Eats365 Products, and any changes, improvements, or modifications to such materials or derivative works thereof. Restaurant agrees not to (a) directly or indirectly, or through a third-party, copy any Software, or any derivative thereof, to create any computer software programs, computer systems or documentation which are functionally, visually, or otherwise identical or substantially similar to the Products of Eats365, or to create a derivative thereof; (b) directly or indirectly, or through a third-party, reverse engineer, disassemble or decompile any of the Software, or make any attempt in any fashion to obtain or derive the source code of the Software, or to infringe on any of Eats365's intellectual property rights and interests, including any copyright, trade secret or patent rights, in the Software or in trademarks or trade names associated therewith (c) use, copy or infringe on any content, trademark, service mark and/or logo contained on the Eats365 Market Place (the "Eats365 Content"), which are either owned by or licensed to Eats365; (d) circumvent, disable or otherwise interfere with any security related features of the Eats365 Market Place, or any other features that seeks to either prevent or restrict the use or copying of any Eats365 Content or enforce limitations on use of the Eats365 Market Place, or the Eats365 Content therein.
5.3 Customer Data from Eats365 and Affiliates. The Restaurant agrees to use Customer Data from Eats365 and third party affiliates for the fulfillment of the applicable Customer Order only, and in compliance this Agreement, shall not use such data for any other purpose, including without limitation enhancement to any file or list of the Restaurant or any third party, resell, broker or otherwise disclose to any third party, in whole or in part, for any purpose whatsoever. The Restaurant (and any other persons to whom the Restaurant provides any Customer Data) will implement and comply with reasonable security measures in protecting, handling, and securing the Customer Data.
6. Term and Termination
6.1 Term of Agreement. This Agreement is effective upon the Restaurant's initial Registration Process and will remain in full force and effect for so long as the Restaurant continues to use the Eats365 Products, and/or its inclusion in the Eats365 Market Place as part of the Eats365 Services. Either Eats365 or the Restaurant may terminate this Agreement any time, for any reason, with or without notice to the other. Neither party shall have any liability to the other party for damages suffered by a party as the result of any such termination. RESTAURANT MUST EXPORT THEIR DATA PRIOR TO TERMINATION OF THIS AGREEMENT. EATS365 SHALL NOT BE RESPONSIBLE FOR THE RESTAURANT'S DATA AFTER SUCH TERMINATION. Eats365 will, as soon as practicable following such termination (or notice thereof, if terminated by the Restaurant), remove the Restaurant from inclusion in the Eats365 Market Place and Eats365 Services, where applicable.
6.2 Post Termination. Upon termination, each party shall promptly pay to the other any outstanding amounts owed for applicable Customer Orders prior to such termination. If terminated by the Restaurant, no refund, off set or claim can be made against the Eats365 Products subscription fees paid prior to such termination. Any Restaurant data including Customer Data from the Restaurant may be deleted without notification to the Restaurant. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
TO THE FULLEST EXTENT PERMITTED BY LAW, EATS365 AND ITS AFFILITES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE EATS365 PRODUCTS, EATS365 MARKET PLACE AND EATS365 SERVICES AND ANY USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. RESTAURANT AGREES THAT THE EATS365 PRODUCTS AND SERVICES ARE PROVIDED "AS IS." AND ANY USE IS AT RESTAURANT'S SOLE AND ABSOLUTE RISK. EATS365 MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE EATS365 PRODUCTS, EATS365 MARKET PLACE'S OR EATS365 SERVICES' CONTENT OR THE CONTENT OF ANY OTHER EATS365 MARKET PLACES LINKED TO THE EATS365 MARKET PLACE, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE RESTAURANT'S ACCESS TO AND USE OF THE EATS365 PRODUCTS, EATS365 MARKET PLACE AND EATS365 SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF EATS365' SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE EATS365 PRODUCTS AND EATS365 MARKET PLACE OR OTHERWISE WITH RESPECT TO THE EATS365 SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE EATS365 PRODUCTS, EATS365 MARKET PLACE OR EATS365 SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE EATS365 PRODUCTS, EATS365 MARKET PLACE OR EATS365 SERVICES.
8. Limitations of Liability
IN NO EVENT SHALL EATS365 OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, PARTNERS, AFFILIATES, OR AGENTS BE LIABLE TO RESTAURANT OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF, MISUSE OF OR INABILITY TO USE THE EATS365 PRODUCTS OR SERVICES, ERRORS IN OR LOSS OF ANY DATA, THE COSTS OF RECOVERING DATA, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS, LOSS OF USE OF EATS365 PRODUCTS OR SERVICES, LOST PROFITS, LOST BUSINESS, DOWNTIME OR ANY SPECIAL INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY NATURE OR FOR ANY REASON, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF EATS365 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EATS365' LIABILITY TO RESTAURANT FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY THE RESTAURANT TO EATS365 FOR THE EATS365 PRODUCTS OR EATS365 SERVICES DURING THE PERIOD OF 3 MONTHS PRIOR TO ANY CAUSE OF ACTION FIRST ARISING.
LOCAL LAW MAY PROHIBITS LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE RESTAURANT, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO THE RESTAURANT, AND THE RESTAURANT MAY HAVE ADDITIONAL RIGHTS.
The Restaurant hereby agrees to defend, indemnify and hold Eats365 and its affiliates, and each of their respective directors, officers, employees, services providers, and agents (collectively, the "Eats365 Indemnitees") harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys' fees and expenses, made by any party due to or arising out of the Restaurant's Marketing Materials, the Eats365 Products, the Eats365 Market Place, the Eats365 Services, or any breach by the Restaurant of this Agreement. Notwithstanding the foregoing, Eats365 reserves the right, at the Restaurant's expense, to assume the exclusive defense and control of any matter for which the Restaurant may be required to indemnify an Eats365 Indemnitee, and the Restaurant agree to cooperate, at the Restaurant's expense, with Eats365' defense of such claims. Eats365 will use reasonable efforts to notify the Restaurant of any such claim, action, or proceeding which may be subject to this indemnification upon Eats365 becoming thereof.
Except as explicitly stated otherwise, any notices given to Eats365 shall be given by email to [email protected] Any notices given to the Restaurant shall be to the email address provided during the Registration Process (or as such information may be updated via the Eats365 Market Place by Restaurant from time to time); provided, however, that Eats365 may also give notices via regular mail.
Additionally, the Restaurant may contact Eats365 at its regional office address or telephone number as can be obtained on the www.eats365.com website (as may be updated by Eats365 from time to time) with respect to any complaint regarding the Eats365 Products and Services or to receive further information regarding the Eats365 Products and Services.
This Agreement constitutes the entire agreement between the Restaurant and Eats365 regarding the use of the Eats365 Products; provided, further, that the Restaurant's use of and access to the Eats365 Market Place and Eats365 Services shall also be subject to the then-current Term of Use. The failure of Eats365 to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement and the Restaurant's account with Eats365 (including the Eats365 Products, Eats365 Market Place and Eats365 Services) may not be assigned by the Restaurant without Eats365' express written consent. Eats365 may assign any or all of its rights and obligations to others at any time. If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Eats365 may modify this Agreement from time to time, and any such changes will (i) be reflected on the Eats365 website and/or Eats365 Market Place, (ii) be effective 30 calendar days after being so posted on the Eats365 Market Place, (iii) not apply retroactively, and (iv) not apply to any disputes arising prior to the effective date of such change. The Restaurant understands the importance of regularly reviewing this Agreement as updated on the Eats365 website and/or Eats365 Market Place, and agrees to be bound to any such changes.
Notwithstanding anything to the contrary herein, Eats365 reserves the right to, at any time and from time to time, change, alter, modify, suspend, discontinue, or otherwise amend, temporarily or permanently, the Eats365 Products, Eats365 Market Place and Eats365 Services (or any part thereof) with or without notice. The Restaurant agrees that Eats365 shall have no liability to the Restaurant or to any third party for any change, alteration, modification, suspension, discontinuance, or amendment of the Eats365 Products, Eats365 Market Place or Eats365 Services.