BY (1) AGREEING TO AND SUBMITTING THE EATSTREET SIGN UP FORM, EATSTREET ALCOHOL SIGN UP FORM, AND/OR OTHER APPLICABLE AGREEMENT OR (2) USING THE EATSTREET PLATFORM (DEFINED HEREIN) OR ACCEPTING ORDERS VIA THE EATSTREET PLATFORM, MERCHANT AND ANY ENTITIES IT REPRESENTS INCLUDING ALL PARTICIPATING STORE LOCATIONS ACCEPTS AND AGREE TO BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT.
As used herein ?Merchant? means the entity named in the EatStreet Sign Up Form (the "Sign Up Form"), the EatStreet Alcohol Sign Up Form (?Alcohol Sign Up Form?) or related agreement that references these EatStreet Merchant Terms and Conditions (?Terms and Conditions?) and/or uses or accepts Orders via the EatStreet Platform. These Terms and Conditions together with the applicable Sign Up Form, Alcohol Sign Up Form and/or other applicable agreement constitute the Merchant's agreement (collectively, the "Agreement") with EatStreet, Inc. (?EatStreet?). The EatStreet Platform includes 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").
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 ordering and delivery service that allows customers to place orders on the EatStreet Platform (?EatStreet Customers?) for Merchant products, and in some instances provides delivery services to Merchants to deliver orders placed on the EatStreet Platform to EatStreet Customers;
WHEREAS, Merchant would like to provide products, including but not limited to food and beverage, convenience, or grocery items, to EatStreet Customers and would like EatStreet to facilitate and transmit such product orders ("Orders") from EatStreet Customers to Merchant for Merchant to prepare and fulfill and for either pick up, merchant delivery, 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. Merchant and EatStreet agree that they are independent businesses whose relationship is governed by the Sign Up Form and/or Alcohol Sign Up Form (?Sign Up Sheets?), these Terms, and any other applicable terms between the Parties. EatStreet will deliver to Merchant the services selected from those described below in Sections 1 (A)-(E) (the "Service(s)"). Merchant 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 Merchant.
A. Marketplace Service.
B. Delivery Service.
EatStreet will, except as otherwise agreed or stated on the Sign Up Sheets:
Merchant, in addition to the responsibilities set forth in Section 1.A. above, will:
C. Third Party Contractors
D. Marketing and Promotional Services.
EatStreet will make available to Merchant various Marketing and Promotional Services as further described below and updated from time to time. EatStreet will provide certain online advertising services to Merchant, 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 Merchant on the Sign Up Sheets or the Supplemental Marketing Services Form or otherwise requested and subsequently confirmed by EatStreet in writing.
Marketing Services & Descriptions:
Promotional Services Descriptions:
EatStreet may offer various Promotional Services to Merchant 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.
E. Merchant Website Creation and Hosting Service.
F. Ordering Button Service.
2.Order Equipment. EatStreet will provide Merchant with certain equipment (the "Order Equipment") that Merchant 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). Merchant will pay EatStreet any Order Equipment Fee in exchange for the right to use the Order Equipment to access the EatStreet Platform in order to receive Orders.
Any Order Equipment provided by EatStreet will remain EatStreet?s sole property and may be used solely for purposes related to fulfilling Merchant?s responsibilities under this Agreement. Use of Order Equipment for any unauthorized purposes may result in additional data costs for which Merchant will be solely responsible. EatStreet may restrict or rescind Merchant?s right to use the Order Equipment at any time by giving notice. Merchant 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.
If the Order Equipment becomes damaged or can no longer be used for the purpose for which it was provided, the Merchant must notify EatStreet within 24 hours for a replacement. Merchant will be solely responsible for any damage to or loss of any Order Equipment provided by EatStreet. Merchant is responsible for the cost of replacing any damaged or lost Order Equipment, and EatStreet may recover the cost of replacement by deducting the amount from any payments owed to Merchant.
3.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 Sheets or EatStreet notifies Merchant in writing of the applicable method of calculating Commissions and Merchant does not object within fourteen (14) days of that notice.
B. Fees: Merchant agrees to pay EatStreet the Fees specified below unless the parties specify otherwise in the Sign Up Sheets, the Supplemental Marketing Services Form (where applicable) or EatStreet notifies Merchant in writing of the applicable Fee and Merchant does not object within fourteen (14) days of that notice. EatStreet may deduct any such fees from its payment to Merchant.
C. Payment by Check. Unless stated otherwise on the Sign Up Sheets, EatStreet will mail a check to Merchant at the address provided in the Sign Up Sheets on the 1st of every month in an amount equal to the dollar value of all Orders EatStreet transmitted to Merchant, that Merchant fulfilled the previous month, less: (a) any Fees agreed upon in the Sign Up Sheets (as then currently amended or updated); (b) applicable Processing Fees; (c) any fees for any other requested Services; (d) any other fees or commission which EatStreet may notify you regarding with at least 14 days? advance written notice, and (e) any refunds issued to EatStreet Customers as a result of issues relating to Merchant's food or Order fulfillment. Merchant is responsible for keeping its address updated with EatStreet at all times.
D. Payment by ACH. If Merchant requests in writing to receive payment by ACH, EatStreet will pay Merchant weekly, upon EatStreet receiving all payment or funds for Orders from applicable payment processors or approved payment methods for all Orders EatStreet transmitted to Merchant and that Merchant fulfilled the previous week, less: (a) any fees agreed upon in the Sign Up Sheets (as then currently amended); (b) applicable Processing Fees; (c) any fees for any other requested Services; (d) any other fees or commission which EatStreet may notify you regarding with at least 14 days? advance written notice, and (e) any refunds issued to EatStreet Customers as a result of issues relating to Merchant's food or Order fulfillment. Merchant is responsible for ensuring that any changes to Merchant's banking information to which EatStreet is making payment is provided to EatStreet within 24 hours of any change. Where Merchant fails to provide accurate or updated banking information, Merchant 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. Payment by Stripe. For certain Orders, including those involving alcohol, Merchant may receive direct payment for those Orders from Stripe on a frequency determined by Stripe. Merchant agrees that EatStreet fees and commissions will be withheld from these payments and all payments Merchant receives from Stripe for Merchant?s Orders shall satisfy EatStreet?s payment obligations to Merchant for those Orders.
F. Refunds and Re-Orders. EatStreet may in its sole discretion issue a refund, credit, or re-order to an EatStreet Customer in connection with their Order. Merchant will bear the full cost of that refund, credit or re-order and will not dispute any such refunds or credits, which are then subsequently deducted from payments as described in Sections 3.C, 3.D and 3.E above unless the refund or credit is attributable to EatStreet's gross negligence. Where EatStreet issues a re-order, Merchant will promptly fulfill the Order again in accordance with EatStreet's reorder instructions at Merchant's cost, unless the re-order is caused by EatStreet's gross negligence. Orders requiring redelivery due to Merchant?s error, including Merchant Personnel providing an incorrect or incomplete Order to the Driver, are subject to the Fees listed in Section 3.B as an additional delivery.
For Delivery Service Orders, Merchant acknowledges and agrees that EatStreet shall be responsible only for facilitating the delivery of Merchant?s product to EatStreet Customers. Merchant shall be solely responsible for any customer complaints regarding Merchant?s products, including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant?s products. If Merchant elects to refund a EatStreet Customer for any reason, such election shall not obligate EatStreet to provide a corresponding reimbursement to Merchant. EatStreet shall be responsible for customer support issues relating to the ordering of Merchant?s products and issues relating to an EatStreet Customer?s EatStreet account.
G. Taxes. Merchant 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 such applicable taxes, duties, fees, and charges to the appropriate authority. In some jurisdictions, EatStreet may be required to collect sales, use or similar taxes from the EatStreet Customer and remit such taxes directly to the tax authority. In such jurisdictions, EatStreet will inform Merchant that EatStreet will remit any collected taxes to the tax authority and EatStreet will be relieved of any responsibility to remit such collected taxes to Merchant.
H. Disputes. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on Orders and invoices via the EatStreet Platform, and to promptly communicate to EatStreet in writing any claimed inaccuracies, so that EatStreet has the prompt opportunity to address and resolve any issues and so such issues do not persist, which EatStreet and Merchant agree is in the best interest of both Parties and their commercial relationship. Merchant agrees to communicate to EatStreet any disagreement, non-conformity or any issue with any transaction, fee, commission, charge or Order, including in connection with fraudulent transactions or payments, within 14 days of the transaction, fee or Order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and Order if Merchant does not communicate a written claim or objection to EatStreet regarding such transaction, fee, charge or Order within such 14-day period.
I. Without limiting any other rights and remedies available to EatStreet under this Agreement or applicable law: (1) EatStreet may discontinue performance under this Agreement or any Sign Up Sheets in the event that the Merchant fails to pay any amounts due under this Agreement; (2) EatStreet may hire a professional debt collector or attorney to recover such amounts due to EatStreet, and (3) Merchant will reimburse EatStreet for any reasonable fees and costs it incurred in recovering of those amounts, including without limitation attorneys? fees, court costs, and debt collector fees.
J. Changes to Commissions and Fees. EatStreet may change or update any Commissions or Fees for Services provided to Merchant by providing Merchant fourteen (14) days written notice. Merchant accepts any such changed or updated fees by accepting and fulfilling Orders any time on or after the effective date listed on the notice.
K. Stripe Payment Processing. Payment for certain Orders, including those containing alcoholic beverages, may be processed by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of EatStreet enabling payment processing services through Stripe, Merchant agrees to provide EatStreet and Stripe accurate and complete information about Merchant?s representative and its business, and Merchant authorizes EatStreet to share it and transaction information related to Merchant?s use of the payment processing services provided by Stripe. Upon account creation, Merchant shall be solely responsible for the accuracy and integrity of the information associated with their Stripe account(s). EatStreet will not be responsible for making additional payments to Merchants due to missing or inaccurate information and all payments Merchant receives from Stripe for Merchant?s Orders shall satisfy EatStreet?s payment obligations to Merchant for those Orders.
L. Miscellaneous. Merchant agrees EatStreet may charge EatStreet Customers fees or commissions, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, Small Order Fee or other fees, commissions or charges, in any manner, where applicable, in EatStreet's sole discretion, with or without notice to Merchant. In the event that Merchant raises the price for a menu item, EatStreet shall not be required to remit the higher price to the Merchant until 3 business days after the Merchant first provides notice to EatStreet of such pricing change.
4.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 Merchant 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 7, Merchant represents that it owns all rights in its name, marks, logo, menu, or any photographs, graphics, descriptions, or images it provides to EatStreet, and/or any similar content for use in connection with the Services ("Merchant IP").
D. Merchant 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.
5.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 Merchant 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. Merchant 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. Merchant acknowledges and agrees that the EatStreet Platform may support third party channel providers to whom EatStreet Customers submit Orders, but all other Services are provided by EatStreet in accordance with the Sign Up Sheets. 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. Merchant's Handling of EatStreet Customer Data.
6.Grant of License by EatStreet. EatStreet grants Merchant 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 Merchant a non-exclusive, non-sublicensable right to display the EatStreet Marks in accordance with EatStreet's trademark guidelines provided to Merchant from time to time, solely for the purposes set forth in this Agreement.
7.Grant of License to Merchant IP and Content. Merchant 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 Merchant 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 Merchant names, trademarks, social media account names / handles and images on its websites (including on any custom websites created for Merchant by EatStreet or in procuring a domain name for Merchant), computer software applications/ mobile apps and other EatStreet platforms. Merchant hereby waives any right to inspect or approve the use or other exploitation of the Merchant IP now or in the future, whether such use is known to Merchant. EatStreet may assign or grant these rights to others.
If photographs of Merchant?s menu items are not available or if they do not meet EatStreet?s requirements, as reasonably determined by EatStreet, then Merchant consents to EatStreet (i) engaging a professional photographer to take photographs of Merchant?s menu items or other products, (ii) enhancing the quality of Merchant?s existing photographs, (iii) using stock photographs of the menu item or other products, or (iv) using photographs from Merchant?s website or social media channels, and displaying such photographs on the EatStreet Platform as representations of Merchant?s menu items; provided that Merchant may contact EatStreet to have such photographs removed from the Merchant?s store listing and, in such event, EatStreet will comply in a timely manner.
8.Feedback and Improvements.
A. Merchant and/or EatStreet Customers may from time to time provide suggestions, comments or other feedback ("Feedback") to EatStreet with respect to EatStreet?s 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. Merchant 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.
9.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 Merchant 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, Merchant's right to use the Services, Website, App and/or Delivery App shall immediately cease, and Merchant 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). Merchant 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.
10.Confidentiality. Merchant shall treat as confidential any technical, financial, proprietary, business or other information, provided or made available by EatStreet to the Merchant 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"). Merchant 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 Merchant, (ii) Merchant otherwise rightfully obtains from third parties without restriction, or (iii) is independently developed by Merchant with no knowledge of or access to such information. If Merchant is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, Merchant shall promptly notify EatStreet in writing of such requirement so that EatStreet can seek a protective order or other remedy or waive its rights under Section 10 and provide reasonable assistance to EatStreet, at EatStreet's sole expense, in opposing or seeking protective limitations on disclosure.
11.Representations and Warranties; Disclaimer.
A. Mutual Representations and Warranties. 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. Merchant Representations and Warranties. Merchant represents and warrants that:
C. EatStreet Representations and Warranties. 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 employees or 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, TO THE EXTENT PERMITTED BY LAW, THE SERVICES, WEBSITE, APP, DELIVERY APP, EQUIPMENT 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, TO THE EXTENT PERMITTED BY LAW, 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 MERCHANT VIA EATSTREET, THE WEBSITE, OR THE APP. SO LONG AS EATSTREET UPDATES MERCHANT?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 MERCHANT BY ANY OTHER PARTY CONCERNING ANY CLAIMS REGARDING FOOD, PRODUCTS, GOODS AND/OR SERVICES PROVIDED BY THE MERCHANT. Merchant acknowledges that the operation of the EatStreet Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and EatStreet shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to EatStreet Services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
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 MERCHANT 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.
Each party (the ?Indemnifying Party?) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the ?Indemnified Party?) from and against any and all claims, damages, losses and expenses (including reasonable attorney?s fees) (collectively ?Losses?) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party?s personnel or unsafe condition on its premises; (ii) the gross negligence or more culpable act or omission of the Indemnifying Party or its personnel in connection with the performance of this Agreement, (iii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth this Agreement, including Sections 5, 10 and 11; or (iv) the violation of the intellectual property of the third party by the Indemnifying Party?s logos, trademarks, trade names, menus, documentation, or other intellectual property. In addition, Merchant will defend, indemnify and hold harmless EatStreet from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s) or Merchant?s failure to distribute tips as required by applicable law, except to the extent such Losses were caused directly by the gross negligence or willful misconduct of EatStreet.
Each party's indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any claim such that the Indemnifying Party is not prejudiced by any delay of such notification, (ii) the option to assume sole control of the defense and/or settlement of such claim, so long as the defense and/or settlement does not involve an admission of guilt of the Indemnified Party or impose any obligation on the Indemnified Party; and (iii) receiving full cooperation of the Indemnified Party in the defense and/or settlement thereof at the Indemnifying Party?s expense. The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense.
14.Arbitration; Class Action Waiver. Unless Merchant opts out of arbitration in accordance with Section 14A below, Merchant and EatStreet agree that all claims or disputes, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, will be referred to and finally 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 (?Arbitrator?) under the Commercial Arbitration Rules of the American Arbitration Association (?AAA?), which are available at www.adr.org. The parties agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, scope, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. 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, validity, conscionability, enforceability or breach of this Class Action Waiver, or whether this Class Action Waiver is void or voidable, may be resolved only by the 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 law.
A. Opt Out of Arbitration. Merchant may opt out of the arbitration agreed to in Section 14 above, which would preclude either Merchant 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. Merchant's opt out of arbitration must be sent by First Class Mail to EatStreet, Inc., 44 E. Mifflin Street, Suite 400, Madison, WI, 53703 and must specify Merchant name, address, username, and email address, and must be submitted by someone legally authorized to act on Merchant's behalf, and must clearly state that Merchant is exercising its option to opt out of arbitration of any and all disputes arising out of this EatStreet Merchant Terms and Conditions. Any attempt to opt out by email will be ineffective. The letter may opt out, at most, only one merchant, and letters that purport to opt out multiple merchants will not be effective as to any. No Merchant (or its agent or representative) may effectuate an opt out on behalf of other persons. Merchant'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 Merchant may have entered into or will enter into with EatStreet or may enter into the future with EatStreet.
B. Class Action Waiver in Court Litigation. If Merchant opts out of arbitration, to the extent allowed by applicable law, separate and apart from the Arbitration Agreement above, MERCHANT AGREES THAT IT WILL BRING ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE or COLLECTIVE ACTION BASIS AND WILL NOT LITIGATE ANY SUCH CLAIMS JOINTLY OR CONSOLIDATE THOSE CLAIMS WITH ANY OTHER PARTIES OR LITIGANTS. The parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or dispute, then all such claims and disputes will then be resolved in arbitration.
If any provision of this Section 14 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 14 or this Agreement. Nothing in this Section 14 shall prevent Merchant or EatStreet from participating in a class-wide, collective, or representative settlement of claims. This Section 14 will survive any termination of Merchant?s relationship with EatStreet.
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. Merchant agrees that during the Term of the Agreement and for one (1) year thereafter, Merchant 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) Merchant for any reason; provided, however, that such non-solicitation restriction shall not apply to those service personnel who previously provided services to Merchant before his or her service relationship with EatStreet.
17.Publicity. EatStreet may reference or promote Merchant as a business partner in public announcements, press releases, social media, and/or on the Website or App.
19.Communications from EatStreet. Merchant agrees to accept and receive communications from EatStreet, its agents and affiliates, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to EatStreet. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of EatStreet, its affiliated companies and/or partners. Merchant may opt-out of such communications by contacting EatStreet support or by replying ?STOP? from the mobile device receiving such messages.
20.Franchisees. Franchisees operating a branded restaurant or store concept licensed by Merchant represent and warrant that by participating in the Services and entering into this Agreement that it is in compliance with its franchise agreement.
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 14 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. Merchant hereby waives any and all objections to the exercise of jurisdiction over Merchant by such courts and to venue in such courts.
D. Waiver of Jury Trial. EATSTREET AND Merchant 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 14 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 Merchant 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 Merchant and EatStreet with respect to the subject matter hereof. EatStreet may modify this Agreement by providing Merchant 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, Merchant will be deemed to have accepted any such new terms.
H. Survival. The provisions of Sections 3-4, 10 and 12-16, 21.C-D of this Agreement shall survive the expiration or termination of this Agreement for any reason.
I. Force Majeure. Neither EatStreet nor Merchant 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 Merchant in the Sign Up Sheets (or other such other address as the Party communicates in writing or regularly uses for businesses purposes) or EatStreet at the following address: 44 E. Mifflin Street, Suite 400, 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.
Effective Date: March 28th, 2023