This EatStreet Restaurant Terms and Conditions ("Terms and Conditions") are entered into between EatStreet, Inc. ("EatStreet") and the restaurant (the "Restaurant") named in the EatStreet Sign Up Form (the "Sign Up Form") as of the Effective Date set forth therein. These Terms and Conditions together with the Sign Up Form constitute the Restaurant's agreement (collectively, the "Agreement") with EatStreet. By agreeing to and submitting the Sign Up Form, you agree to the Agreement.
SECTION 14 BELOW HAS AN ARBITRATION PROVISION THAT REQUIRES YOU TO ARBITRATE DISPUTES BETWEEN US, UNLESS YOU OPT OUT OF ARBITRATION IN ACCORDANCE WITH THIS AGREEMENT, AND IT CONTAINS A WAIVER OF CLASS ACTION RIGHTS. BY AGREEING TO THE AGREEMENT, YOU AGREE TO THOSE PROVISIONS.
WHEREAS, EatStreet is an online food ordering and delivery service that allows customers to place food orders on the EatStreet website (the "Website"), the EatStreet mobile application (the "App"), or other channels, including third party channels, as determined by EatStreet from time to time, (collectively, the "EatStreet Platform") (collectively, "EatStreet Customers") from local restaurants, and in some instances provides delivery services to restaurants to deliver food orders placed on the EatStreet Platform to EatStreet Customers:
WHEREAS, Restaurant would like to provide food to EatStreet Customers and would like EatStreet to facilitate and transmit such food orders ("Orders") from EatStreet Customers to Restaurant for Restaurant to fulfill and prepare for pick up or either deliver itself or engage EatStreet to deliver.
NOW THEREFORE, in consideration of the promises and the mutual covenants set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
1. Services. EatStreet will deliver to Restaurant the services selected from those described below in Sections 1 (A)-(E) (the "Service(s)"). Restaurant selects the Service by: (a) choosing the Service on its Sign Up Form; or (b) requesting the Service from EatStreet and processing an Order received from EatStreet after EatStreet transmits a confirmation email or facsimile of the requested Service to Restaurant.
A. Marketplace Service.
i. List Restaurant on the EatStreet Platform;
ii. Post or facilitate posting of Restaurant's menu or menu items provided by Restaurant on the EatStreet Platform;
iii. Accept Orders placed on the EatStreet Platform from EatStreet Customers for food items listed on the Restaurant menu posted to the EatStreet Platform;
iv.Transmit Orders by communication method selected on Sign Up Form (or as later updated and confirmed by EatStreet) to Restaurant from EatStreet Customers placed on the EatStreet Platform for fulfillment by Restaurant;
v.Accept payment or facilitate payment from EatStreet Customers for Orders placed on the EatStreet Platform and transmit to Restaurant or permit Restaurant to do so;
vi. Provide reporting and accounting of all Orders transmitted to Restaurant.
vii. Provide a menu that includes current pricing to EatStreet for posting on the EatStreet Platform and notify EatStreet immediately of any changes relating to Restaurant, including food offerings, menu pricing, Restaurant operating hours, including holiday hours;
viii. Accept and timely fulfill Orders transmitted from EatStreet to Restaurant;
ix. Timely make available or deliver Orders by: (a) packaging Order for EatStreet Customers to pick up at Restaurant; (b) packaging Order for pick up by an EatStreet driver if Restaurant has selected Delivery Service from EatStreet; or (c) delivering the Order to EatStreet Customers at the address provided by EatStreet if Restaurant has not selected EatStreet's Delivery Service set forth in Section 1(B) below;
B. Delivery Service.
EatStreet will, except as otherwise agreed or stated on a SignUp Form:
i. Provide Restaurant Order Equipment, which may include a Tablet, as described in Section 2 below.
ii. Populate Orders received on the EatStreet Platform into an application (the "Delivery App") on the Tablet or mutually agreed upon Order Equipment for fulfillment by Restaurant.
iii. Require that Restaurant confirm its receipt of an Order and require Restaurant to notify EatStreet of an Order "Ready By Time" in the Delivery App on the Tablet or mutually agreed upon Order Equipment so that EatStreet can know when to send a driver to the Restaurant to pick up and deliver the Order.
iv. Send a driver to the Restaurant by or about the time specified by the Ready By Time and deliver the Order to the EatStreet Customer.
v. Confirm receipt of an Order when received and notify EatStreet of an Order "Ready By Time" in the Delivery App on the Delivery Tablet to inform EatStreet when to send a driver;
vi. Promptly update any Orders with changes received from EatStreet, confirm receipt of change order when received, and update "Ready By Time" if necessary;
vii. Prepare and package Order for delivery, have it ready for pick up by EatStreet driver by the "Ready By Time", and be responsible for conveying the Order to the driver;
viii. Maintain Restaurant premises in safe condition in accordance with local, state, and Federal workplace safety regulations.
C. Marketing and Promotional Services.
EatStreet will make available to Restaurant various Marketing and Promotional Services as further described below and updated from time to time. EatStreet will provide certain online advertising services to Restaurant, which may include targeting EatStreet Customers on the EatStreet Website or App or via email. EatStreet will provide the below marketing and/or promotional services to the extent specifically requested by Restaurant on the Sign Up Form or the Supplemental Marketing Services Form or otherwise requested and subsequently confirmed by EatStreet in writing.
Marketing Services & Descriptions:
Top Listing: Restaurant will be periodically listed on a rotating basis at or near the top of the default sort list of restaurants (the "Default Sort") at a frequency determined by EatStreet. Restaurant's frequency of appearance and placement at or near the top of the Default Sort is determined by the total number of restaurants subscribed to this Top Listing service in Restaurant's general geographic delivery zone or pick up area ("Service Area").
Featured Listing: Restaurant will be listed as a "Featured" restaurant or otherwise designated as featured in the Default Sort in a manner determined by EatStreet for EatStreet Customers within the Restaurant's Service Area.
Paid Email Advertisement: Restaurant will be periodically listed or otherwise promoted in EatStreet emails sent to EatStreet Customers within the Restaurant's Service Area as reasonably determined by EatStreet.
Promotional Services Descriptions:
EatStreet may offer various Promotional Services to Restaurant from time to time. Below is an example of a current Promotional Service offered by EatStreet in some geographic areas. EatStreet may cancel or add any offered Promotional Service at any time within its sole discretion.
i. Restaurant Sponsored Free Delivery Promotion:
Restaurant will pay EatStreet a Sponsored Delivery Fee on behalf of its EatStreet Customers, which shall be the delivery fees ordinarily charged on Orders to Customers ("Customer Delivery Fee(s)") to whom EatStreet will instead charge a $0.00 Customer Delivery Fee during the designated promotion timeframe and so long as the Order total meets a certain agreed upon dollar minimum.
Restaurant will determine the promotion timeframe by specifying the start and end date of the Restaurant Sponsored Free Delivery promotion. Restaurant will also determine the minimum Order total required for an Order to qualify for the Restaurant Sponsored Free Delivery promotion, and for all such qualifying Orders, Restaurant will pay a Sponsored Delivery Fee between the minimum and maximum amounts set forth in the Supplemental Marketing Services Form or other applicable ordering document or communication, which will depend on the Customer's delivery location to the Restaurant. Restaurant may also limit the eligible delivery Service Area for the Restaurant Sponsored Free Delivery promotion by notifying EatStreet of any Service Area restrictions. EatStreet does not guarantee the results of the promotion. Restaurant may cancel the promotion at any time by notifying EatStreet via phone call or email, and the cancelation will be effective upon confirmation by EatStreet.
D. Restaurant Website Creation and Hosting Service
i. Obtain a website domain name on behalf of Restaurant in a domain name reasonably determined by EatStreet.
ii. Create and host a website for Restaurant through which Restaurant will accept EatStreet Customer Orders (the "Restaurant Website").
iii. Redirect EatStreet Customer Orders on Restaurant Website to EatStreet ordering and payment platform.
iv. Design and maintain Restaurant Website for purposes of processing Orders and serving EatStreet Customers
E. Ordering Button Service.
i. Provide Restaurant with code to implement an EatStreet hosted I-Frame (the "I-Frame") or Order Now Button (the "Order Now Button") on their website.
ii. Allow Restaurant to accept Orders via EatStreet hosted I-Frame or re-direct Orders to the EatStreet Website when customers click the Order Now Button
2. Equipment. EatStreet will provide Restaurant certain equipment (the "Order Equipment") that Restaurant will install and use to fulfill EatStreet Customer Orders (which may include, without limitation, a tablet (the "Tablet") or other automated, electronic means of receiving Orders). Restaurant will maintain the Order Equipment in good, working condition, ordinary wear and tear excepted, and safeguard the equipment from damage, loss, theft and unauthorized access.
A. If the Order Equipment becomes damaged or can no longer be used for the purpose for which it was provided, the Restaurant must notify EatStreet within 24 hours for a replacement. Restaurant will be solely responsible for any damage to or loss of any Order Equipment provided by EatStreet. Restaurant is responsible for the cost or replacing any damaged or lost Order Equipment, and EatStreet may recover the cost of replacement by deducting the amount from any payments owed to Restaurant.
B. EatStreet may, if agreed upon with the Restaurant in the Sign Up Form, provide data for the Tablet for a fee. The Restaurant agrees that the Tablet will be used for the sole purpose of fulfilling Orders. Use of the Tablet for any unauthorized purposes may result in additional data costs for which Restaurant will be solely responsible.
3. Intellectual Property Ownership.
A. Except as otherwise set forth herein, EatStreet owns, licenses, or has permission to use all intellectual property related to the EatStreet Platform, Website, App, and Services and shall remain the owner or controlling entity operating with license or permission of all right, title and interest to all intellectual property and all intellectual property derived from the Website, App, and/or Services ("EatStreet IP"). No ownership or sublicensing rights in Content shall be acquired by Restaurant under this Agreement.
B. EatStreet owns all content, which means the EatStreet name, marks, logos, identifiers (collectively, "EatStreet Marks"), designs, photos, graphics, source code, texts, EatStreet created, owned, licensed, or permissively-used works made available and accessible via the Website, App, Delivery App, and/or Services (collectively, the "Content").
C. Subject to Section 6, Restaurant owns all rights in its name, marks, logo, menu, or any photos, graphics, or images it provides to EatStreet, and/or any similar content for use in connection with the Services ("Restaurant IP").
D. Restaurant will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any EatStreet IP or Content (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, or create derivative works based on any EatStreet IP or Content; (c) remove any proprietary notices or labels; and (d) use EatStreet IP, Website, App, Delivery App, and/or Content in any manner that violates the rights of any person, including but not limited to intellectual property rights, rights of privacy or rights of publicity.
4. EatStreet Customer Data.
A. EatStreet is the owner and/or data controller with respect to any information, which includes personal information, provided by EatStreet Customers to EatStreet on the EatStreet Platform, whether received on or through the Website, App, Online Ordering Button Service, EatStreet created Restaurant Website, and/or via EatStreet's telephone number, including any analytics, reports, statistics derived from that information (collectively, "EatStreet Customer Data").
B. Each Party will implement reasonable and appropriate physical, technical, and administrative safeguards to protect EatStreet Customer Data. Restaurant will notify EatStreet immediately if it becomes aware of any unauthorized access to or acquisition of EatStreet Customer Data and will cooperate with EatStreet in any investigation or attempt to mitigate any potential risk or harm caused by such unauthorized access or acquisition.
C. Restaurant acknowledges and agrees that the EatStreet Platform may support third party channel providers to whom Customers submit Orders, but all other Services are provided by EatStreet in accordance with the Sign Up Form. Where Customer submits an Order to a third party channel provider on the EatStreet Platform ("Channel Order"), the ownership and use of the information and associated obligations relating to that Channel Order shall be determined by the agreement between EatStreet and that third party channel provider and shall be consistent with privacy notices or policies provided to the Customer.
D. Restaurant's Handling of EatStreet Customer Data.
i. Restaurant may only retain, use, and/or disclose EatStreet Customer Data and/or Channel Order information solely to fulfill the specific purpose of this Agreement.
ii. Restaurant is strictly prohibited from retaining, using, and/or disclosing EatStreet Customer Data and/or Channel Order information for any reason or purpose other than fulfilling the specific purpose of this Agreement.
iii. EatStreet receives no monetary and/or other valuable consideration in sharing or disclosing EatStreet Customer Data and/or and Channel Order information to Restaurant pursuant to the Agreement.
iv. Restaurant shall not retain, use, and/or disclose EatStreet Customer Data and/or and Channel Order information in any manner that could be construed as a "sale" of such EatStreet Customer Data and/or and Channel Order information under any applicable law or regulation.
v. Restaurant will reasonably assist EatStreet in responding to EatStreet Customer requests for access to personal information or for specific pieces of personal information.
vi. Restaurant acknowledges and understands the prohibitions outlined in this Section 4.D and will comply with them.
5. Grant of License by EatStreet. EatStreet grants Restaurant a non-exclusive, limited, non-transferable, and royalty-free license to use the EatStreet Customer Data, Channel Order Information, Content, Website, App, and/or Delivery App solely to fulfill Orders and assist EatStreet in delivering Services. In addition, EatStreet grants Restaurant a non-exclusive, non-sublicensable right to display the EatStreet Marks in accordance with EatStreet's trademark guidelines provided to Restaurant from time to time, solely for the purposes set forth in this Agreement.
6. Grant of License to Use Restaurant IP. Restaurant hereby grants EatStreet a non-exclusive, fully paid, royalty-free, perpetual, unrestricted, worldwide right and license (with the right to make unlimited sublicenses), but not the obligation, to use, reproduce, display, publish, distribute, transmit, modify, translate, make derivative works from, and otherwise exploit all Restaurant IP, or any portion thereof, in connection with the EatStreet products and Services or the marketing or advertising thereof in any and all media formats and channels now known or hereafter devised including, but not limited to, a license and right to use the Restaurant names, trademarks, social media account names / handles and images on its websites (including on any custom websites created for Restaurant by EatStreet or in procuring a domain name for Restaurant), computer software applications/ mobile apps and other EatStreet platforms. Restaurant hereby waives any right to inspect or approve the use or other exploitation of the Restaurant IP now or in the future, whether such use is known to Restaurant. EatStreet may assign or grant these rights to others.
7. Feedback and Improvements.
A. Restaurant and/or EatStreet Customers may from time to time provide suggestions, comments or other feedback ("Feedback") to EatStreet with respect to the Services, Content, Website App, and/or Delivery App. Feedback, even if designated as confidential by the Party offering the Feedback, shall not, absent a separate written agreement, create any confidentiality obligation for the receiver of the Feedback. Except as otherwise provided herein or in a separate subsequent written agreement between the parties, EatStreet will own the Feedback and shall be free to use, disclose, protect (e.g., patent, copyright, trademark, trade secret, etc.), reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
B. All improvements, systems, programs, operating instructions and other documentation, rights in patentable inventions, trade secrets and know how, database interests and copyrights associated therewith related to the Services, the Content, the Website, App, and/or Delivery App, which are conceived, prepared, developed or delivered during the Term of this Agreement (whether independent of or in connection with performance hereunder), shall be and remain the sole property of EatStreet. Restaurant agrees to cooperate with EatStreet and execute, or cause its personnel to execute, such further acknowledgments and instruments as may be necessary to establish such ownership.
8. Term and Termination. This Agreement will be effective on the Effective Date and shall remain in effect unless terminated in accordance with this Agreement.
A. Termination for Cause. Either Party may terminate this Agreement for any material default or breach of this Agreement by the other Party, which default or breach has or shall have continued for a period of thirty (30) days after written notice from the other Party of such default or breach;
B. Termination for Convenience. Either EatStreet or the Restaurant may terminate this Agreement for any reason upon written notice to the other party.
C. Effect of Termination. Upon the effective termination of this Agreement for any reason, Restaurant's right to use the Services, Website, App and/or Delivery App shall immediately cease, and Restaurant shall immediately return all EatStreet provided Order Equipment to EatStreet in substantially the same condition, with the exception of normal wear and tear. Failure to return the Order Equipment in accordance with this Agreement shall result in a charge for the replacement cost (per Order Equipment, where applicable). Restaurant will also destroy or delete any EatStreet Customer Data and/or Channel Order information in its possession or control and certify its destruction or deletion of such EatStreet Customer Data and/or Channel Order information.
9. Commissions, Fees, and Payment.
A. Commissions. The below Commissions shall be calculated as set forth in subsections (i)-(iii) below, unless the parties specify otherwise in the Special Instructions section of the Sign Up Form or EatStreet notifies Restaurant in writing of the applicable method of calculating Commissions and Restaurant does not object within thirty (30) days of that notice.
i.Marketplace Commission: Restaurant agrees to pay EatStreet the Marketplace Commission calculated from the commission rate specified on the Sign Up Form or otherwise agreed upon by EatStreet and Restaurant. The Marketplace Commission applies to all Orders placed through EatStreet Platform, Restaurant Website, IFrame, and/or Order Now Button unless indicated otherwise on the Sign Up Form. The Marketplace Commission is calculated by multiplying the Marketplace Commission rate with the Order total, which includes tax, tip and Customer Delivery Fees. If the Restaurant selects Delivery Service, the Marketplace commission is then calculated by multiplying the Marketplace Commission rate with the Order total, excluding tax, tip and Customer Delivery Fees.
ii. Delivery Commission: If Restaurant selects Delivery Service, Restaurant agrees to pay EatStreet the Delivery Commission calculated from the commission rate specified on the Sign Up Form or otherwise agreed upon by EatStreet and Restaurant on all Orders delivered by EatStreet. The Delivery Commission is calculated by multiplying the Delivery Commission rate with the delivery Order total, excluding tax, tip and Customer Delivery Fees.
iii. Ordering Products Commission: If Restaurant requests that EatStreet provide a Restaurant Website or Ordering Button, Restaurant shall pay EatStreet the commissions calculated from the respective commission rates specified in the Sign Up Form, Supplemental Marketing Services Form, or otherwise agreed upon by EatStreet and Restaurant based on relevant Order total, which includes tax, tip and Customer Delivery Fees. The Restaurant Website Commission is calculated by multiplying the Restaurant Website Creating and Hosting Commission rate with the Order total placed through the Restaurant Website, which includes tax, tip and Customer Delivery Fees, and the Ordering Button Commission is calculated by multiplying the Ordering Commission rate with the Order total placed through the Ordering Button, which includes tax, tip and Customer Delivery Fees.
B. Fees: Restaurant agrees to pay EatStreet the Fees specified on the Sign Up Form, the Supplemental Marketing Services Form (where applicable), or otherwise updated by EatStreet, for Marketing Products or Optional add-ons to Order Technology, and Restaurant shall also pay any applicable Processing Fees specified below. EatStreet may deduct any such fees from its payment to Restaurant.
i. Top and Featured Listing Fees: EatStreet will charge Restaurant the weekly fee specified on the Sign Up Form or otherwise agreed upon by EatStreet and the Restaurant for this Service. If the total dollar value of all Orders EatStreet transmitted to Restaurant during a week is less than 200% of the agreed upon fee for this Service, the weekly fee charged will only be 50% of the total agreed upon dollar value for this fee for that given week.
ii. Processing Fees: For all non-cash transactions, Restaurant will pay EatStreet a Processing Fee (the "Processing Fee") equal to the total dollar Order amount multiplied by 3.25% plus $0.30 for each Order transaction.
C. Payment by Check. Unless stated otherwise on the Sign Up Form, EatStreet will mail a check to Restaurant at the address provided in the Sign Up Form on the 1st of every month in an amount equal to the dollar value of all Orders EatStreet transmitted to Restaurant, that Restaurant fulfilled the previous month, less: (a) any Fees agreed upon in the Sign Up Form (as then currently amended or updated); (b) applicable Processing Fees; (c) any fees for any other requested Services; and (d) any refunds issued to EatStreet Customers as a result of issues relating to Restaurant's food or Order fulfillment. Restaurant is responsible for keeping its address updated with EatStreet at all times.
D. Payment by ACH. If Restaurant requests in writing to receive payment by ACH, EatStreet will pay Restaurant weekly, upon EatStreet receiving all payment or funds for Orders from applicable payment processors or approved payment methods for all Orders EatStreet transmitted to Restaurant and that Restaurant fulfilled the previous week, less: (a) any fees agreed upon in the Sign Up Form (as then currently amended); (b) applicable Processing Fees; (c) any fees for any other requested Services; and (d) any refunds issued to EatStreet Customers as a result of issues relating to Restaurant's food or Order fulfillment. Restaurant is responsible for ensuring that any changes to Restaurant's banking information to which EatStreet is making payment is provided to EatStreet within 24 hours of any change. Where Restaurant fails to provide accurate or updated banking information, Restaurant is solely responsible for recovering payments deposited into any incorrect account, and EatStreet is not in any way responsible or liable for any such misdirected payments.
E. Refunds and Re-Orders. EatStreet may in its sole discretion issue a refund, credit, or re-order to an EatStreet Customer in connection with its Order. Restaurant will not dispute any such refunds or credits, which are then subsequently deducted from payments as described in Sections 9C and 9D above unless the refund or credit is attributable to EatStreet's gross negligence. Where EatStreet issues a re-order, Restaurant will promptly fulfill the Order again in accordance with EatStreet's re-order instructions at Restaurant's cost, unless the re-order is caused by EatStreet's gross negligence.
F. Taxes. Restaurant is responsible for all applicable taxes, duties, and other fees or charges imposed by a governmental body on or associated with an Order and for remitting all applicable such taxes, duties, fees, and charges to the appropriate authority.
G. In the event that the Restaurant fails to pay any amounts due under this Agreement, EatStreet may hire a professional debt collector or attorney to recover such amounts due to EatStreet, and Restaurant will reimburse EatStreet for any fees and costs associated with recovery of those amounts.
H. Changes to Commissions and Fees EatStreet may change or update any Commissions or Fees for Services provided to Restaurant by providing Restaurant 7 days written notice. Restaurant accepts any such changed or updated fees by accepting and fulfilling Orders any time on or after the effective date listed on the notice.
10. Confidentiality. Restaurant shall treat as confidential any technical, financial, business or other information, provided or made available by EatStreet to the Restaurant and designated as confidential or proprietary or by its nature should be understood to be confidential, including EatStreet Customer Data, Channel Order information, delivery driver information, and fees and payment information under the Agreement ("Confidential Information"). Restaurant shall not disclose and shall not use Confidential Information except to the extent necessary to carry out its obligations or express rights hereunder. This obligation will not apply to information that (i) is generally and freely publicly available through no fault of the Restaurant, (ii) Restaurant otherwise rightfully obtains from third parties without restriction, or (iii) is independently developed by Restaurant with no knowledge of or access to such information.
11. Representations and Warranties; Disclaimer.
A. Mutual Warranty. Each party represents and warrants to the other party that (a) such party has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and the performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation on both Parties.
B. Restaurant Warranty. Restaurant represents and warrants that all Orders will comply with applicable laws and regulations for food safety and the terms herein. Restaurant further represents and warrants that (i) it owns right, title and interest in and to the Restaurant IP, and/or (ii) it has the full right to license, distribute, and display the Restaurant IP pursuant to this Agreement and grant the rights and permissions granted herein.
C. EatStreet Warranty. EatStreet represents and warrants that it shall perform the Services in a professional and workmanlike manner using employees or third-parties that have a level of skill commensurate with the requirements of the Agreement. The sole obligation of EatStreet with respect to this warranty is to re-perform any nonconforming Services or, at EatStreet's sole option, to refund the fees for the applicable non-conforming Services. EatStreet will not advertise nor guarantee to the public or to EatStreet Customers that a delivery will be accomplished within a specified time of receiving an order. EatStreet will not require Drivers to make deliveries in a specified period of time. EatStreet further represents and warrants that (i) it owns right, title and interest in and to the Content and the EatStreet Marks, and (ii) it has the full right to license, distribute, and display the Content and EatStreet Marks pursuant to this Agreement.
D.Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, WEBSITE, APP, DELIVERY APP, AND CONTENT ARE PROVIDED ON AN "AS-IS" BASIS AND EATSTREET DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EATSTREET EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. EATSTREET DOES NOT WARRANT THAT THE PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE PLATFORM WILL BE SECURE OR UNINTERRUPTED.
EATSTREET DOES NOT GUARANTEE THAT USERS WILL BUY FROM RESTAURANT VIA EATSTREET, THE WEBSITE, OR THE APP. SO LONG AS EATSTREET UPDATES RESTAURANT'S PRICE CHANGES ON THE WEBSITE AND APP IN A TIMELY MANNER, EATSTREET WILL NOT BE LIABLE FOR ANY AMOUNTS THAT DIFFER FROM THOSE LISTED ON THE WEBSITE OR APP. EATSTREET IS NOT LIABLE FOR ANY CLAIM AGAINST THE RESTAURANT BY ANY OTHER PARTY CONCERNING ANY CLAIMS REGARDING FOOD, GOODS AND/OR SERVICES PROVIDED BY THE RESTAURANT.
12. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, EACH PARTY AND ITS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EITHER PARTY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY RESTAURANT TO EATSTREET FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
A. EatStreet Indemnification. EatStreet shall hold harmless, defend, and indemnify Restaurant from liability to third parties resulting from: (1) bodily injury or death of any person or damage to real or tangible personal property arising from EatStreet's gross negligence or willful misconduct; or (2) any type of automobile accident or collision involving a driver hired or engaged by EatStreet.
B.Restaurant Indemnification. Restaurant shall hold harmless, defend, and indemnify EatStreet from any claims or liability to third parties arising or resulting from: (1) any claim relating to the food provided by Restaurant (provided that such claims are not the direct result of mishandling by EatStreet); (2) Restaurant's alleged violation of this Agreement or any applicable laws or regulations, including, but not limited to food and health safety regulations; (3) any infringement claims related to Restaurant IP; or (4) any injury or damage to third parties as a result of a hazard or unsafe condition on its premises or relating to Restaurant's delivery of Orders itself or through a third party.
C. Indemnification Procedure Each party's indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any claim; (ii) being provided sole control of the defense and/or settlement of such claim, so long as the defense or settlement does not involve an admission of guilt of the indemnified party; and (iii) receiving full cooperation of the indemnified party in the defense thereof.
14. Arbitration; Class Action Waiver. Unless Restaurant opts out of arbitration in accordance with Section 13A below, Restaurant and EatStreet agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury ("Arbitration Agreement"). This Arbitration Agreement is governed by the Federal Arbitration Act ("FAA") and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), which are available at www.adr.org. The arbitrator's fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys' fees. The arbitration proceeding will take place in Madison, Wisconsin, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator's decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver"). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver and/or the arbitrability of a claim or dispute may only be determined by an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party's intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
A. Opt Out of Arbitration. Restaurant may opt out of the arbitration agreed to in Section 13 above, which would preclude either Restaurant or EatStreet from requiring arbitration of disputes arising out of this Agreement, by notifying EatStreet in writing no later than thirty (30) days after Effective Date that it is opting out. Restaurant's opt out of arbitration must be sent by First Class Mail to EatStreet, Inc., 316 West Washington Avenue, Suite 725, Madison, WI, 53703 and must specify Restaurant name, address, username, and email address, and must be submitted by someone legally authorized to act on Restaurant's behalf, and must clearly state that Restaurant is exercising its option to opt out of arbitration of any and all disputes arising out of this EatStreet Restaurant Terms and Conditions. Restaurant's opt out of the arbitration provision of this Agreement shall not affect the applicability of any other parts of this Agreement and shall not affect any other arbitration agreements Restaurant may have entered into or will enter into with EatStreet.
B. Class Action Waiver in Court Litigation If Restaurant opts out of arbitration, it continues to agree that it will bring any and all claims arising out of this Agreement on an individual basis and not on a class basis and will not litigate any such claims jointly or consolidate those claims with any other parties or litigants.
15. Non-Disparagement. During the Term and for a period of one year thereafter, each party agrees to take no action, nor make any negative comments, either spoken or written, which is intended, or that would reasonably be expected, to harm the other party or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to such other party.
16. Non-solicitation. Restaurant agrees that during the Term of the Agreement and for one (1) year thereafter, Restaurant will not encourage or solicit any employee, independent contractor or consultant of EatStreet to leave (or devote less than his or her full time to) Restaurant for any reason; provided, however, that such non-solicitation restriction shall not apply to those service personnel who previously provided services to Restaurant before his or her service relationship with EatStreet.
17. Publicity. EatStreet may reference or promote Restaurant as a business partner in public announcements, press releases, social media, and/or on the Website or App.
A. Assignment. EatStreet may assign its rights and obligations under this Agreement in its sole discretion.
B. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of Delaware without regard to its conflict of law provisions.
C. Venue. Subject to Section 12 above, any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal or state courts located in the State of Wisconsin, Dane County. Restaurant hereby waives any and all objections to the exercise of jurisdiction over Restaurant by such courts and to venue in such courts.
D. Waiver of Jury Trial. EATSTREET AND RESTAURANT 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 12 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
E.Severability. All provisions of this Agreement shall be considered as separate terms and conditions, and in the event any one shall be held illegal, invalid or unenforceable, all the other provisions hereof shall remain in full force and effect as if the illegal, invalid, or unenforceable provision were not a part hereof, unless the provision held illegal, invalid or unenforceable is a material provision of this Agreement, in which case EatStreet and Restaurant agree to amend this Agreement with replacement provisions containing mutually acceptable terms and conditions.
F. Independent Contractors. The parties hereunder are independent contractors. Neither party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
G. Entire Agreement; Modifications to Agreement. This Agreement constitutes the entire Agreement between the Restaurant and EatStreet with respect to the subject matter hereof. EatStreet may modify this Agreement by providing Restaurant notice of a material change in the Agreement via email, facsimile, or on its [reports], and posting the then-current Terms and Conditions to the Website, with an indication on its homepage that the Terms and Conditions have been updated. By continuing to engage with EatStreet for Services thereafter, Restaurant will be deemed to have accepted any such new terms.
H. Survival. The provisions of Sections 3-4, 10 and 12-16, 18.D of this Agreement shall survive the expiration or termination of this Agreement for any reason.
I. Force Majeure. Neither EatStreet nor Restaurant shall be responsible for any failure or delay in the performance of any obligation hereunder, if such failure or delay is due to a cause beyond the respective Party's reasonable control, including, but not limited to acts of God, flood, fire, volcano, war, acts of terrorism, electrical disruption, third-party suppliers beyond a Party's reasonable control, labor disputes or governmental acts
J. Notices. All notices to either party shall be in writing and delivered by hand, email, certified mail or overnight delivery service to the address set forth by Restaurant in the Sign Up Form or EatStreet at the following address: 316 West Washington Avenue, Suite 725, Madison, WI, 53703. The Parties may change the address at which it will receive notice by informing the other Party in writing of the new address at least thirty (30) days before the changed notice address. Notices shall be effective when delivered to the applicable address